R v. Immigration Appeal Tribunal, Ex parte Balbir Singh

R v IMMIGRATION APPEAL TRIBUNAL Ex parte BALBIR SINGH; TH/7337/76

Queen's Bench Division

[1978] Imm AR 64

Hearing Date: 2 November 1977

2 November 1977

Index Terms:

Appeal -- Right of appeal -- Application for variation of "limited leave to enter or remain" in the United Kingdom -- Refusal of application -- Application made after expiry of "limited leave" but while appeal pending against refusal of earlier timely application -- No right of appeal from refusal of second application -- Suthendran's Case ([1977] Imm. A.R. 44) applied retrospectively -- Immigration Act 1971, s 14(1).

"Limited leave" to enter or remain in the United Kingdom -- Application for extension made after expiry of "limited leave" but while appeal pending against refusual of earlier timely application under s 14(1) of Immigration Act 1971 -- Second application made prior to House of Lords' decision in Suthendran's Case ([1977] Imm. A.R. 44) -- Whether right of appeal by reason of estoppel or otherwise -- Immigration Act 1971, s 14(1).

Held:

An applicant who applied for an extension of stay after the expiry of his "limited leave [under the Immigration Act 1971] to enter or remain in the United Kingdom" but while he had an appeal pending following upon the refusal of an earlier timely application was not at the time of his second application a person with "limited leave" and, not being such a person, he had no right of appeal under s 14(1) of the 1971 Act against the refusal of his second application. n1 No kind of estoppel arose to give a right of appeal by reason of the fact that the second application was made before the decision of the House of Lords in Suthendran v Immigration Appeal Tribunal ([1977] Imm. A.R. 44), for that case had made clear the meaning which the Immigration Act 1971 had (in this respect) always borne since it was passed. * n1 Section 14(1) provides as follows: "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." * The applicant Balbir Singh appealed from this decision to the Court of Appeal, again raising the issue of estoppel but in a different form. The judgment of Lord Denning MR is that appeal, is reported at [1978] Imm A R 204 The Division Court so held on the facts which are set out in the judgment reported below.

Counsel:

Harjit Singh for the applicant. Harry Woolf for the respondent. PANEL: Lord Widgery CJ, Talbot and Boreham JJ.

Judgment One:

TALBOT J (delivering the first judgment at the inviation of Lord Widgery CJ): Mr Harjit Singh moves on behalf of Balbir Singh for an Order of Certiorari to quash the refusal of leave for the applicant to make an application to appeal to the Immigration Appeal Tribunal. In addition, he moves for an Order of Mandamus directed to the Immigration Appeal Tribunal to hear the applicant's application for an extension of stay as a student on merits and law. The position giving rise to this motion is this. This applicant arrived at Heathrow on 8 August 1974 and was given leave to enter the country as a visitor for one month. On 20 August 1974 an application was made to extend his permission to remain in this country. That was granted up to 8 February 1975. Before that date, on 3 February 1975, the applicant made a further application to remain in this country, the reason being that his mother had died and that he wished to extend his stay in order to look for a husband for his sister. That application for a further permission to stay was refused on 30 April 1975. He then entered an appeal against that refusal on 12 May 1975. Following that entry of appeal he began a course of studies at the Bilston College of Education in September 1975. Having taken that course of studies, then his solicitor by letter of 15 October 1975 made yet a further application that he should be permitted to stay in this country for the completion of his studies. In fact the studies would appear to be for a period of two years, where his initial application had been for a period of twelve months in order to find a husband for his sister. Following the application, his appeal against the first refusal was dismissed by an adjudicator on 15 December 1975. On 8 January 1976 the Immigration Appeal Tribunal refused him leave to appeal further. On 3 May 1976 his application which he had put in on 15 October 1975 was refused, and on 14 May 1976 he desired to appeal against the refusal to extend his stay for his studies. That came before the adjudicator on 6 January 1977 and the adjudicator, Mr Patey, decided that the applicant did not have any legal standing in order to make an appeal. He was supported on 28 February 1977 by the Immigration Appeal Tribunal, whose secretary wrote as follows:

"I have been advised to inform you that, in view of the decision of the Court of Appeal in the case of Subramaniam v Immigration Appeal Tribunal n3, the Tribunal agrees with the findings of the adjudicator that Mr Singh has no right of appeal against the Secretary of State's decision."

n3 [1976] Imm A R 155; [1977] 1 QB 190: [1976] 3 All ER 604. The arguments put forward by Mr Harjit Singh on behalf of this motion are, principally, that the applicant had, as he described it, an implied leave to remain in this country, as he put it, by reason of his continuing presence in the country. He also submits that there was an inference from all the evidence -- what he described as the total situation -- that he has leave to remain in this country. He has referred us to para 9 of HC 80, which deals with the transferability of occupations for those who are permitted to be in this country. n4 In addition, he has submitted that, though this matter clearly is governed had it come subsequent to the cases of Subramaniam n3 and Suthendran n5 by those authorities, he has acquired what he describes as vested rights, and, therefore, some kind of estoppel against the Home Office arises. n3 [1976] Imm A R 155; [1977] 1 QB 190: [1976] 3 All ER 604. n4 Paragraph 9 of HC 80 is in the following terms: "Where a visitor wishes to stay here in some other temporary capacity, for example as an 'au pair' girl or student, the request may be granted and the conditions varied appropriately if the requirements for stay here in the proposed new capacity are met, but not otherwise." n5 Suthendran v Immigration Appeal Tribunal (HL), [1977] Imm A R 44; [1977] AC 359; [1976] 3 All ER 611. As my Lord, the Lord Chief Justice, pointed out in the course of argument, the case of Suthendran n5 now makes clear what the law was as set out in the Immigration Act 1971. What it has made clear is the meaning of the Act which it always has borne since it was passed. The fact of the matter is that when this applicant through his solicitor, made his application on 15 October 1975 to extend his stay for studies, he was not at the time a person with limited leave and therefore lawfully in the country under s 14(1) of the Immigration Act 1971 and, therefore not being such a person, he had no right of appeal. n6 n6 On 27 September 1976 The Immigration (Variation of Leave) Order 1976 (S.I. 1975 No. 1572) came into operation. This Order secures (by providing for the necessary extension in appropriate cases) that where a person applies to the Secretary of State for a variation of a current limited leave under the Immigration Act 1971 to enter or remain in the United Kingdom, the leave shall not expire earlier than 28 days after the date of the Secretary of State's decision on the application. But article 3(2)(c) excludes cases where the application is made while an extension by virtue of the Order is taking effect in consequence of a previous application. The present applicant, therefore, would not have benefited under the Order had it been in operation at the time of his application of 15 October 1976, for that application would have been caught by article 3(2)(c) . It is plain, as I see it, that the situation the applicant found himself in is governed by the principles expressed in the Suthendran case n5. He was not lawfully in this country. He had, therefore, no right of appeal. The decision of the adjudicator was correct, as was the decision of the Immigration Appeal Tribunal to refuse him leave to appeal. In those circumstances I would refuse these motions.

Judgment Two:

BOREHAM J: I agree.

Judgment Three:

LORD WIDGERY CJ: I agree also.

SOLICITORS:

Clayton, Leach, Sims & Co, agents for Kendrick, Williams & Feibusch, Wolverhampton; Treasury Solicitor.