Kassam and Another v. Secretary of State for the Home Department

KASSAM AND ANOTHER v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/1241/74(466)

Immigration Appeal Tribunal

[1976] Imm AR 20

Hearing Date: 22 April 1975

22 April 1975

Index Terms:

Evidence -- Rebutting evidence by immigration authority -- Affidavits of appellants showing reliance on assurances claimed given them by named immigration officials -- Affidavits referred to immigration authority for consideration -- Rebutting evidence not tendered at adjourned appeal hearing -- Appellants (businessmen) not cross-examined -- Supplementary explanatory statement of immigration authority an insufficient response to the affidavits.

Immigration law -- Former immigration laws -- Continued application of former law in certain appeals -- Appeal against "thing done under the former immigration laws" -- Whether verbal assurance allegedly given in 1972 by immigration official can be a thing done under the former immigration laws -- Whether relevant in later appeal by businessmen against refusal in 1973 to remove time limit on stay -- Immigration Act 1971, s 34(1), 34(4)(c) .

Practice and procedure -- Evidence -- Affidavit evidence of appellants -- Reference in affidavits to assurances given by named immigration officials -- Affidavits referred to immigration authority in Home Office for consideration -- Supplementary explanatory statement saying 'no record' of claimed assurances -- Rebutting evidence (by affidavits or otherwise) not tendered at appeal hearing and appellants not cross-examined -- Insufficient response by immigration authority to appellant businessmen's claim of assurances on which great reliance placed.

Held:

This appeal to the Tribunal by two brothers, citizens of Tanzania, arose from the refusal of the respondent in August 1973 (confirmed on appeal before an adjudicator) to revoke their conditions of limited stay as businessmen so as to enable them to settle in the United Kingdom with their families. Shortly before the appeal hearing before the adjudicator (in June 1974) the appellants produced affidavits claiming that in 1972 when, as visitors to this country, they first enquired about, applied for and were granted permission to set up in business here, they had on two separate occasions been given verbal assurances by officials in the immigration department of the Home Office that at the termination of an initial extension of 12 months as businessmen the restrictions on their stay would be removed on their producing satisfactory evidence of the continuation of their business (audited accounts, etc) and they would be permitted to settle in this country. In their affidavits the appellants gave the names of the two officials who they claimed gave these assurances, and the dates in February and June 1972 when on visits to the Home Office they saw the officials named. The hearing before the adjudicator was adjourned so as to enable the Home Office to consider the affidavits and certain submissions of mixed fact and law made by the appellants' solicitors. At the resumed hearing some months later a supplementary explanatory statement from the Home Office stated inter alia that there was no record of either brother being assured that the time limit attached to his stay would be removed after 12 months. In oral evidence before the adjudicator the brothers confirmed the contents of their affidavits but were not cross-examined by the respondent's representative. The adjudicator found on the evidence, on the balance of probability, that no assurances of revocation were given in 1972 as claimed, and held that even had such verbal assurances been given they would not have bound the respondent, inter alia because they would not have been a "thing done under the former immigration laws" as provided for under s 34(4)(c) of the Immigration Act 1971. n1 n1 Section 34(4)(c) is set out on p 27, post. The Tribunal in the determination reported below affirmed the decision of the adjudicator dismissing the appellants' appeals, and expressed the view (1) that the rights of appeal which were preserved by s 34(4)(c) of the Immigration Act 1971 were the rights set out in Part I of the Immigration Appeals Act 1969, and there was in that Act 'no provision for an appeal against an assurance as to any action that would be taken in relation to a person's position under the immigration law'; but (2) that with regard to the alleged verbal assurances on which the appellants placed great reliance it was not sufficient for the Home Office merely to say that there was 'no record':

"In our view the matter should have been properly tested before the adjudicator in cross-examination, and rebutting evidence -- if only by way of affidavit -- should have been tendered."

Counsel:

E. Cotran, counsel for the appellants. R. W. B. Hurley for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Sir John Rankine, Mrs B. Warburton.

Judgment One:

THE TRIBUNAL: The appellants in these appeals are Shirazali Ebrahim Kassam and his brother Nurdin Ebrahim Kassam, citizens of Tanzania, and their respective wives Shanaz Kassam and Maherbanu Kassam. Mr S. E. Kassam arrived in the United Kingdom on 6 February 1972 in possession of an entry certificate endorsed "visitor" and he told the interviewing immigration officer he would stay five days as a tourist. He produced a return ticket and evidence of his means and was admitted for one month on conditions prohibiting employment and engagement in business. Mr. N. E. Kassam arrived in the United Kingdom on 8 February 1972 in possession of an entry certificate endorsed "visitor" and he said that he wished to stay for five days for a holiday. According to the explanatory statement he stated emphatically that he had no intention of seeking work nor of opening a business in the United Kingdom. He produced a return ticket to Tanzania and sufficient funds and he also was admitted for a period of one month on conditions prohibiting employment and engagement in business. On 23 February 1972 Mr S. E. Kassam called at the Home Office and requested an extension of stay for 3 months for the purpose of investigating business possibilities in this country. He was granted an extension of stay to 6 June 1972, the conditions prohibiting employment being retained. Mr N. E. Kassam also called at the Home Office on 23 February 1972 and asked for an extension of stay as a visitor and he was given an extension to 31 August 1972, the conditions prohibiting employment and engagement in business being retained. On 4 April 1972 the two brothers again called at the Home Office and said that they wished to set up business here together. They told the official who interviewed them that they were in the process of purchasing a business Latcham Ltd, 11 Highbury Park, London, N5. They stated that they would each put @ 10,000 into the business and that a further @ 5,000 would be raised in the form of a loan. Their applications were accepted for consideration and they were advised to submit further detailed evidence of their assets, the bank loan and the partnership agreement. After Messrs S. E. and N. E. Kassam had submitted the required evidence of their proposed business activities, the Home Office approved their applications to remain here in business and authorised the British Embassy in Karachi to issue entry certificates to their respective wives and children. On 7 June 1972 the Home Office wrote to Mr N. E. Kassam informing him of the decision and granting extensions of stay for him and his brother to 6 June 1973, the prohibition on employment and business being revoked. On 29 May 1973 Mr S. E. Kassam and his brother wrote to the Home Office requesting that the condition attached to their stay and that of their wives be revoked to allow permanent residence in the United Kingdom. The Secretary of State considered the application under the provisions of para 28 of HC 80 but he was of opinion that the appellants did not qualify under this paragraph of the immigration rules for the time limit attached to their stay to be removed. Nor did he consider that they qualified for such revocation of conditions under any other part of the immigration rules. The Secretary of State therefore refused their application, but they were granted an extension of stay to 22 August 1974 to enable them to remain here in business. They were informed of the decision on 22 August 1973, and notice of appeal was received on 4 September 1973. The Secretary of State considered the grounds of appeal and observed that the appellants and their representative, Mr A. Nazerali, Solicitor, of 71 Chandos Road, Boreham Wood, Hertfordshire, claimed in a letter to the Home Office dated 30 August 1973 that they were assured by the Home Office when permission was first granted to remain here in business, that at the end of that 12-month period, they would be granted permanent residence. The Secretary of State was of the opinion that no such assurance was given and he saw nothing in the grounds of appeal which might cause him to alter his decision. Shortly before the case came on for hearing before an adjudicator in June 1974 submissions of mixed fact and law and affidavits by Mr S. E. Kassam and his brother were filed. When the case came on for hearing the adjudicator, Miss K. D. Phillips, at the request of Mr B. Hunter who appeared for the respondent, adjourned the appeal to enable the Home Office to consider the documents. The affidavits by the two brothers are in the same terms and deal with the Home Office statements concerning each of these appellants. In their affidavits the brothers state that they called on 21 February 1972 at the Home Office Immigration Department in Holborn and were interviewed by a Miss Donnison at the public enquiry counter. They state that when they said they were investigating the possibility of permanent settlement in this country on the ground of establishing themselves in business, she informed them that they should in the first instance find a suitable business and upon production of audited accounts of business and financial evidence they would be granted an initial stay of 12 months and thereafter the restriction of stay would be removed subject to satisfactory evidence of continuation of the business. In these affidavits they agreed with the contents of the Home Office statements relating to their call at the Home Office on 4 April 1972. They then went on to state that on or about 5 June 1972 they called at the Home Office to make enquiries as to the progress of their applications. They were seen by a Mr John Dickie, who informed them that the Home Office was satisfied and had approved their application. Mr Dickie, they said, further stated that they would be granted an initial stay of 12 months and that the time limit would be removed at the expiration of the 12-month period upon production of audited accounts for the trading period of 12 months and upon the Home Office being satisfied that they were still carrying on the business. After considering the documents the Home Office issued a supplementary statement. In it, in para 3, it is stated that there is no record of Mr Nurdin Kassam and his brother calling at the public enquiry counter though they might have called at the general enquiry point for information. The statement continues: "No records are kept of general enquiries but they may have been informed that under the then current practice consideration would be given to removing the conditions attached to their stay after 12 months. There was, however, no automatic right to revocation under the rules then in force (para 22 of Cmnd 4295). This remains the position." n2 n2 Paragraph 22 of Cmnd 4295 made provision for Commonwealth citizens admitted as visitors to apply for the consent of the Secretary of State "to their establishing themselves here for the purpose of setting up in business", and the rule concluded with the following words: "Where the application is granted the applicant's conditions of admission will be extended for a period of up to 12 months." Paragraph 21 of HC 80 (which came into operation in January 1973) makes similar provision for applications by potential businessmen, and the rule concludes with the following two sentences: "Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially." Paragraph 28 of HC 80 provides in relation to businessmen as follows: "When a person who is admitted in the first instance for a limited period has remained here for 4 years in approved employment or as a businessman or a self-employed person or a person of independent means, the time limit on his stay may be removed. Applications for removal of the time limit are to be considered in the light of all the relevant circumstances, including those set out in paragraph 4. If the time limit is removed no further permission from the Home Office or the Department of Employment is needed to engage in any kind of business or employment...." The Home Office, according to the statement, had no record of the brothers calling on 5 June 1972 but they did call on 6 June and Home Office records showed that Mr Nurdin Kassam also called the next day when he was handed a letter dated 7 June 1972 signed by Mr Dickie in which it was stated that it had been decided to grant him and his brother extensions of their stay to 6 June 1973 and towards the end of that period it would be open to them "to apply for variation" of their conditions. According to the statement there was no record of either brother being assured that the time limit attached to his stay would be removed after 12 months. At the resumed hearing of the appeal by the adjudicator in December 1974 the two brothers gave evidence as also did a solicitor Mr A. Nazerali. In her determination the adjudicator set out fully the facts, the evidence she had heard and the submissions made by the parties' representatives. The adjudicator then said that the only question of fact to be decided in the appeals was whether assurances of revocation of conditions of stay on a future application (i.e. an application made after an initial 12 months' extension in the capacity of businessmen) were give to the appellants (1) on 21 February 1972 and (2) on 6 June 1972. Miss Phillips' finding of fact is as follows: "As to (1), the appellants claimed that a Miss Donnison gave them such an assurance on 21.2.72 when they made an enquiry at the Public Enquiry counter. The Home Office have commented on this in para 3 of their Supplementary Statement in the terms which I have already set out. In seeking to determine the truth about this first alleged assurance I have borne in mind that according to the original two Explanatory Statements, separately written for each brother's case, each of the two appellants called at the Home Office on 23.2.72, each made a different type of application and each received a different type of extension; this is not disputed by the appellants, for the contents of para 2 of each original Explanatory Statement is admitted in their affidavits. There may be some simple explanation for their decision to apply for different types of extension just two days after receiving the alleged assurances, but no explanation has been provided. It would certainly appear that the applications of the brothers on 23.2.72 were made by each separately and that in the absence of any comment in the Home Office Explanatory Statement the officials granting the extensions did not consider the applications or applicants to be in any way connected with each other. It may here be worth repeating that the brothers had arrived in the United Kingdom separately two days apart (6 and 8 February 1972) and that the older brother (Mr N. E. Kassam) arriving on 8 February 1972 told the immigration officer that (inter alia) he had no relatives in this country and no intention of setting up in business. (I have already referred in some detail to the brothers' arrival in the United Kingdom and to the different extensions which were granted to them on 23.2.72.) In the absence of any explanation for these apparently separate applications on 23.2.72 I am of opinion that I cannot even on a balance of probability find that they had 2 days earlier been given the clear assurance claimed; it seems much more probable that para 3 of the Home Office supplementary statement expresses the true position, and that in the light of the information then given to them (not an assurance of revocation) they decided not to reveal a co-ordinated plan when they made their definitive applications two days later. As to (2), whether a verbal assurance of revocation was given by Mr John Dickie on 5 or 6 June 1972 -- and on consideration of the written and oral evidence before me I find the relevant date to be 6 June -- I have already referred to Mr Dickie's letter of 7 June in which he used the word 'variation' rather than 'revocation' when writing to Mr N. E. Kassam the day after his call; and nothing in the oral evidence of the appellants leads me to believe that Mr Dickie gave them a firm assurance of revocation the previous day. Had he done so, i.e. gone beyond saying, in reply to the appellants' questions, that consideration would be given to revocation, he would no doubt have adverted to this in his letter -- if only perhaps to indicate that an application for revocation could be entertained in accordance with the spirit of para 33 of Cmnd 4298 but was not a 'right'. n3 I appreciate Mr Cotran's point that the Home Office in their supplementary statement appear to have ignored the existence of para 33 of Cmnd 4298, but whether or not Mr Dickie also ignored it, it does not follow that he would have given an assurance of revocation, since para 33 of Cmnd 4298 does no more than say a person admitted for 12 months as a businessman can 'apply... for the time limit to be extended or revoked', and para 22 of Cmnd 4295 makes no provision at all for revocation. The onus of proving on a balance of probability that such a firm assurance was given rests on the appellants, and I find on the evidence that the balance of probability is the other way. I do this moreover after considering the oral evidence of Mr Abdulmalek Nazerali, evidence which when he was pressed fell far short of his general claim in examination-in-chief that it was the invariable practice of the Home Office to grant businessmen permanent residence after 12 months subject to satisfactory accounts, and short also of the claims made earlier in his firm's written submission." n3 Paragraph 33 of Cmnd 4298 was in the following terms: "A person who appears to qualify for admission under paragraph 31 or 32 [as a businessman] should normally be admitted for a limited period, not longer than 12 months, and advised to apply to the Home Office towards the end of that period for the time limit to be extended or revoked. No limit, however, need be imposed on the period of stay of a person who would also qualify for admission under paragraph 50 as a person of independent means." The adjudicator then turned to the point of law raised by Mr Cotran, which she said she had to deal with as it would be relevant if she was wrong in her finding of fact. The question was, assuming that verbal assurances were given, would any such assurance be a "thing done under the former immigration laws" such as would bring into operation s 34(4)(c) of the Immigration Act 1971. Miss Phillips said that she found it far from simple to decide what the words in s 34(1)(b) and (4)(c) meant n4 but after careful consideration of the matter and with the help of the guidance given in Miah's case n5 she had come to the conclusion that even if she had found that the appellants had been given the verbal assurances claimed by them they would not have brought themselves within the exception provided in sub-s(4)(c) of s 34 of the 1971 Act. The appeals were dismissed. n4 Section 34(1) is set out in footnote 7, post; sub-section (4)(c) of s 34 is set out on p 27, post. n5 R v Miah [1974] 1 All ER 1110 (CA); Waddington v Miah [1974] 2 All ER 377 (HL). The adjudicator noted, inter alia, that STEPHENSON LJ in the Court of Appeal had said that s 34(1)(b) dealt with "acts of the executive, such as acts of immigration officers in granting leave or directing removal" and also perhaps with the issuing of a document such as a valid passport; and that LORD REID in the House of Lords confirmed other words used in the Court of Appeal when he said that s 34(1)(b) "does not apply to anything contrary to, or to any offence against, those (former) laws". The adjudicator then added: "Personally I doubt very much whether the alleged verbal assurances in the present case could be described as 'acts' of the executive, particularly as they were not related to the instant application before the officer concerned, the 1972 application, but purported to bind the executive's action in the future. This would have been wrong under the then current law -- as neither para 33 of Cmnd 4298 nor para 22 of Cmnd 4295 gave a right of revocation -- and therefore the assurance of the officer concerned, even if it could be described as an 'act' would in my view be something done 'contrary to those (former) laws'." The adjudicator granted leave to appeal to the Tribunal and the grounds of appeal that have been submitted are: "1. The adjudicator was wrong in law in rejecting the evidence of the appellants that assurances of revocation of conditions were given by Home Office officials as: (a) The said evidence was not challenged by cross-examination (b) The said evidence was not rebutted by any other evidence (c) The said Home Office officials were not called to contradict the said evidence (d) The Supplementary Explanatory Statement itself does not deny that such assurances were given but merely states that there is no record of such assurances. 2. The adjudicator wrongly drew an adverse inference from the fact that there were 2 separate applications by the appellants; the question was not an issue at the hearing, and the appellants could hardly be expected to provide an explanation when nobody had asked them for one. 3. The adjudicator failed to appreciate that the case for the Home Office, both in the explanatory statements and as made out by the presenting officer, Mr Hunter, was not that the verbal assurances about revocation were not given, but that even if given, there was no power in law to revoke conditions under the old rules in Cmnd 4295. This view is wrong having regard to para 33 of Cmnd 4298. 4. The adjudicator was wrong in law in finding that even if such assurances were given, these were not a 'thing done under the former immigration laws' under s 34(4)(c) of the Immigration Act 1971. 5. The adjudicator wrongly held that the case of Siddiqui (TH/1243/74 (351) was not germane to this appeal." After hearing the arguments and submissions of the parties' representatives which were put forward in detail, we dismissed the appeal because we were satisfied that the adjudicator correctly concluded that "even if (she) had found that the appellants had been given the verbal assurances claimed by them they would not have brought themselves within the exception provided in s 34(4)(c) of the Immigration Act 1971." n6 n6 The adjudicator's reasons are referred to in footnote 5, ante. Section 34(1) of the Immigration Act 1971 repealed earlier legislation, including the Immigration Appeals Act 1969 n7, but sub-s (4) of s 34 provided as follows: n7 Section 34(1) is in the following terms: "(1) Subject to the following provisions of this section, the enactments mentioned in Schedule 6 to this Act are hereby repealed, as from the coming into force of this Act, to the extent mentioned in column 3 of the Schedule; and -- (a) this Act, as from its coming into force, shall apply in relation to entrants or others arriving in the United Kingdom at whatever date before or after it comes into force; and (b) after this Act comes into force anything done under or for the purposes of the former immigration laws shall have effect, in so far as any corresponding action could be taken under or for the purposes of this Act, as if done by way of action so taken, and in relation to anything so done this Act shall apply accordingly." "(4) Notwithstanding anything in the foregoing provisions of this Act, the former immigration laws shall continue to apply, and this Act shall not apply, -- (c) in relation to appeals against any decision taken or other thing done under the former immigration laws, whether taken or done before the coming into force of this Act or by virtue of this sub-section." Mr Cotran argued that "or other thing done" would include an assurance by Home Office representatives that conditions would be revoked and he posed the question that if the giving of assurances are not the 'acts of the executive' what are they; why are they not things done? The answer we think is that the rights of appeal, which are preserved by s 34(4)(c) of the 1971 Act, are set out in Part I of the 1969 Act and there is no provision there for an appeal against an assurance as to any action that would be taken in relation to a person's position under the immigration law. Nor indeed could it be envisaged that a person to whom an assurance had been given would appeal against the giving of such an assurance. The adjudicator, we consider, gave weighty reasons in the extracts of her determination which we have quoted for not finding on the balance of probabilities that clear assurances had been given. Nevertheless it was claimed in the affidavits that were submitted to the Home Office and also in the evidence given before the adjudicator that such assurances were given and the persons giving them were named. In the Home Office supplementary statement of 12 November 1974 it is stated that there is no record of either brother being assured that the time limit attached to his stay would be removed after 12 months but in view of the categorical statements about the assurances, on which the appellants placed great reliance, we do not think that it is sufficient merely to say that there is no record. It seems clear that the Home Office case was that no such assurances were given and in our view the matter should have been properly tested before the adjudicator in cross-examination, and rebutting evidence, if only by way of affidavit, should have been tendered. n8 n8 In regard to the evidence before the adjudicator the representatives of both parties in their submissions to the Tribunal cited the judgments of the Court of Appeal in T.A. Miller Ltd v Minister of Housing and Local Government ([1968] 2 All ER 633).

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Nazerali, Suchak & Co.

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