R v. Immigration Appeal Tribunal, Ex parte Veena Ahluwalia
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
22 February 1979
R v IMMIGRATION APPEAL TRIBUNAL Ex parte VEENA AHLUWALIA, TH/7095-6/76(934)
Queen's Bench Division
[1979-80] Imm AR 1
Hearing Date: 22 February 1979
22 February 1979
Index Terms:
"Limited leave" to enter or remain in the United Kingdom -- Application for extension made by a wife while employed after admission to join businessman husband -- Letter from Home Office acknowledging wife's application -- Words in letter giving her 'authority to remain' pending a decision on her application -- No decision notified -- Whether letter had given wife "limited leave" so as to preclude later deportation on ground that she had remained in the United Kingdom without authorisation -- Immigration Act 1971, s 3(1), s 3(5)(a), s 4(1) -- HC 80, para 42.
Deportation -- Wife of Commonwealth citizen served with notice of intended deportation -- Reference in notice to section 3(5) of the Immigration Act 1971 -- Specific reference not made to any of sub-paragraphs (a), (b) and (c) of section 3(5) providing different grounds for deportation -- Immaterial that specific sub-paragraph not designated so long as facts fell within terms of any of those sub-paragraphs -- Immigration Act 1971, s 3(5)(a), (b), (c) .
Sex discrimination -- Sex Discrimination Act 1975 -- Decision of Secretary of State to make deportation order against a wife by reason of decision to deport her husband -- Whether this (and other connected matters) a violation of the Sex Discrimination Act 1975 -- Whether that Act had any applicability to duties performed by the Secretary of State under the Immigration Act 1971 -- Sex Discrimination Act 1975, s 1(1)(a), s 3(1)(a), s 6(2)(b), s 29(1) -- Immigration Act 1971, s 3(5).
Estoppel -- Equitable estoppel -- Letter to Commonwealth citizen from Department of Health (by which employed) indicating that her position in this country was lawful -- Decision by Secretary of State for the Home Department to make a deportation order -- Whether Secretary of State's statutory discretion under the Immigration Act 1971 could be fettered by way of equitable estoppel resulting from other Department's letter -- Immigration Act 1971, s 3(5), s 5(1).
Held:
The applicant, a citizen of India, was admitted to the United Kingdom as a visitor for 12 months in March 1972 to enable her to join her husband, who then had limited leave to remain here to set up in business. n1 Her leave was duly extended in line with his until 25 June 1973. Late in 1972 she had taken employment in the Department of Health, and on 1 June 1973, with the support of that Department, she applied for a further extension. The Home Office acknowledged her application in a letter which included the following sentence: n1 The applicant was admitted under a provision in para 37 of HC 79, which permitted a wife to join (inter alia) a business-man husband with limited [1979-80] Imm AR 1 leave; and para 37 provided that such a wife "should be given leave to enter for the period of his authorised stay" if certain requirements relevant to accommodation and maintenance were satisfied. In HC 394, which came into force on 1.3.80, there is a similar provision in para 40."Meanwhile this acknowledgement may be regarded as authority for the holder to remain in the United Kingdom pending a decision on any application made for an extension of stay."
In due course (in March 1974) a further application for variation made by the applicant's husband was refused, and on this refusal the Secretary of State granted him and the applicant as his wife extensions of stay until 24 April 1974, solely to enable them to make arrangements to leave the country. The husband exercised his right of appeal (under s 14(1) of the Immigration Act 1971) unsuccessfully, the final result being in May 1975 the refusal of the Tribunal to grant him leave to appeal from the adjudicator's dismissal of his appeal. Neither the applicant nor her husband left the United Kingdom, and in May 1976 notices of the Secretary of State's decision to deport the applicant and her husband were served upon them separately. The notice to the applicant stated (inter alia) that she had "remained without authority" and it referred to s 3(5) of the 1971 Act without specifying under which paragraph ((a), (b) or (c) ) of s 3(5) the decision had been taken. n2 Appeals (under s 15 of the Act) to an adjudicator (heard separately) and to the Tribunal (dealt with together) were dismissed, the Tribunal holding that from May 1975 (when her husband had been refused leave to appeal to the Tribunal) the applicant had clearly been in this country "without authorisation". n2 For the full terms of s 3(5) see footnote 5, post. On her application to the Divisional Court for an Order of Certiorari to quash the Tribunal's determination and an Order of Mandamus to compel the Secretary of State to consider her application of 1 June 1973 it was contended for the wife (1) that her presence in this country was not dependent on her husband's application but on her application in June 1973 and that she had been granted leave to remain pending a decision upon it, so that she was not here "without authorisation"; (2) that the Tribunal should have dealt with her case separately from that of her husband; (3) that if the Secretary of State had acted in her case under para (c) of s 3(5) he had acted in violation of the Sex Discrimination Act 1975; and finally, that the failure to treat her case and that of her husband separately was a violation of that Act -- counsel cited s 6(2)(b) and s 29(1) of the Act (see p 5, post). Held (i) allowing the application: the letter from the Home Office acknowledging the wife's application of 1 June 1973 must be regarded as granting her a "limited leave" under s 3(1) & (3) of the Immigration Act 1971 and as written under s 4(1), which provided that the power to vary any leave under s 3(3)(a) should be exercised by the Secretary of State (see p 6, post). It mattered not that the word 'leave' did not appear in the letter, for anyone receiving that letter would conclude that permission to remain lawfully had been granted for a period until a decision on the application was made. Per EVELEIGH LJ: It was relevant to notice that in para 42 of HC 80, clearly referring back to the provisions of s 3 of the Act, the word "authorisation" was used n3; and it was significant that the Tribunal had used that very word. [1979-80] Imm AR 1 n3 Under the heading 'Deportation for breach of condition or unauthorised stay' paragraph 42 of HC 80 reads (in part) as follows: "Deportation will normally be the proper course where the person has persistently contravened or failed to comply with a condition or has remained without authorisation." (ii) the applicant had not suffered discrimination contrary to the Sex Discrimination Act 1975, inasmuch as the words "in any circumstances relevant for the purposes" of the Act which were contained in s 1(1) and s 3(1) were referring to the operative sections of the Act which themselves made discrimination unlawful, and nowhere in the Act was there a reference to the performance by the Secretary of State of his duties under the Immigration Act. Accordingly, the Sex Discrimination Act had no application whatsoever to this kind of case (p 7, post). Per LORD WIDGERY CJ: If the facts of a case for deportation seemed to fall within two or more of the terms of sub-paras (a), (b) and (c) of s 3(5) of the Immigration Act, there was no obligation on the Secretary of State to choose which he should proceed under, he could use all or any of them as he thought fit (p 8, post). (iii) the Crown had not been estopped by a letter to the applicant from the Department of Health -- indicating to her that her position in the country was lawful, for another Department was not in a position in a case like the present one to bind the Secretary of State so as to fetter the statutory discretion granted to him by the Immigration Act 1971 (pp 7 - 8, post).Counsel:
C. Fletcher-Cooke QC and K. S. Nathan for the applicant. D. Latham for the respondent. PANEL: Lord Widgery CJ, Eveleigh LJ, Stephen Brown JJudgment One:
EVELEIGH LJ (giving the first judgment at the invitation of LORD WIDGERY CJ): This is an application for an Order of Certiorari to move into this court and quash the determination of the Immigration Appeal Tribunal dated 22 March 1977, and also for an Order of Mandamus directed to the Secretary of State to consider the applicant's application dated 1 June 1973 for variation of her condition of entry. The applicant was admitted on 23 March 1972 as a visitor for 12 months to enable her to join her husband, who had been granted an extension of stay in the United Kingdom until 2 May 1973. n4 She was subsequently granted an extension in line with an extension granted to her husband until 25 June 1973. The husband had meanwhile applied for permission to remain in the United Kingdom on a different basis from that on which he had made a former application. However, his second application was refused. n4 See footnote 1, ante, for the basis on which the applicant qualified for limited leave to enter the United Kingdom. [1979-80] Imm AR 1 On 1 June the applicant applied for variation of her leave to remain. She made the application hereself and she said: "As directed by my office I am hereby enclosing my Passport... for the purpose of getting variation of my leave to remain in the United Kingdom."I am in the Service of The Crown serving as an executive officer in the Department of Health and Social Security. This is a permanent post."
She had in fact obtained employment in 1972 in that capacity as she states. In reply to that application there was a communication from the Home Office dated 21 June 1973: "The Under-Secretary of State acknowledges the receipt of the following documents relating to Veena Ahluwalia: 1 Passport 2 Letters". Then follows a sentence not relevant for present purposes. That communication concludes:"Meanwhile this acknowledgement may be regarded as authority for the holder to remain in the United Kingdom pending a decision on any application made for an extension of stay."
The important point in this case is the construction of that letter. Is that letter granting "leave" within the meaning of s 3 of the Immigration Act 1971, or is it something independent of leave, some special authorisation to remain that does not attract the consequences or the rights that would follow when leave is granted? The applicant says that that communication was in fact granting her "leave". The respondent says it was not; it was simply authorisation, which is something different from the grant of leave. On 22 March 1974 her husband's further application was refused, but the Secretary of State granted an extension to the husband and the wife until 24 April 1974, solely for them to make arrangements for their departure from the country. The husband appealed, and his appeal was dismissed in December 1974. He made an application to appeal to the Tribunal, but this was refused on 9 May 1975, and there his procedure under s 14 of the Act came to an end. Subsequently the Secretary of State decided to made a deportation order, and in accordance with the Home Office statement this decision was to make a deportation order by virtue of s 3(5)(a) of the Immigration Act 1971. Notice was sent to the applicant stating:"You were admitted to the United Kingdom on 21 March 1972 for 12 months and your stay was extended until 24 April 1974 to enable you to stay with your husband. You remained without authority until 4 February 1976, when Patel Jobanputra & Co. submitted your passport with your husband's passport. On 15 March 1976 you were advised that you had no claim to remain and your passport was returned. The Secretary of State is satisfied that you have failed to comply with the conditions attached to your stay and have no intention of leaving this country voluntarily."
[1979-80] Imm AR 1 It goes on to say:"The Secretary of State has therefore decided to made an order by virtue of s 3(5) of the Immigration Act 1971..."
That notice does does not specifically refer to section 3(5)(a); the whole section is referred to. n5 n5 Section 3(5) of the Act provides as follows:"(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported."
Both husband and wife appealed under s 15 of the Act, and the wife (the present applicant) asked for her appeal to be heard separately. Her appeal to the adjudicator was determined and dismissed on 8 December 1976, and then she appealed, as did the husband, to the Tribunal, and their appeals were dismissed by the Tribunal on 22 March 1977. In the determination and reasons given by the Tribunal the following was stated: "After this appellant had applied to visit her husband who was in this country she was admitted as a visitor for 12 months and this was subsequently extended to 25 June 1973 after her husband's application to remain in the United Kingdom in employment was refused. She herself applied on 1 June 1973 for variation of her leave to enter to enable her to remain in the United Kingdom, since she was employed as an executive officer in the Department of Health and Social Security. This application was not specifically dealt with in the sense that the appellant received a definite answer to her application but her immigration status depended on that of her husband and her service in a Government Department did not remove the necessity for her to show that she had authority by reason of the Immigration Act to be in this country. After her husband's application was refused in March 1974 she and her husband were granted extensions of stay until 24 April 1974 solely to enable them to make arrangements to leave the country. The husband's appeal to an adjudicator was dismissed and leave to appeal to the Tribunal was refused in May 1975" and then follow the important words --"and clearly thereafter this appellant was in this country without authorisation."
In this court it is contended that there appears an error on the face of the record, for it is said that her presence in the country was not dependent upon her husband's application but dependent upon her own application which she made in June 1973, and that the Tribunal did not have regard to that. It is submitted that, if the Tribunal had had regard properly to that application, then it would have been seen that she was granted leave to remain until the determination of her application and was, therefore, not in this country without authorisation. [1979-80] Imm AR 1 It is further contended that the Appeal Tribunal dealt with the case of husband and wife together, and it is submitted that this was the wrong approach and that the wife's case should have been dealt with separately. Further, it is said that there is a reference in the Appeal Tribunal to s 3(5)(c) of the Immigration Act 1971. There does appear a reference to that section in the papers. It is clear, however, in this court that the Secretary of State was purporting to act under para (a) of s 3(5), and the reference to s 3(5)(c) is a mistake. n5 However, in case that reference was not a mistake and that it might be said that the Secretary of State was entitled to act under para (c) of s 3(5) also, Mr Fletcher-Cooke on behalf of the applicant has contended that so to act would be in violation of the Sex Discrimination Act 1975. n6 n5 Section 3(5) of the Act provides as follows:"(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported."
n6 In the course of his submissions on the discriminatory nature of para (c) of s 3(5) counsel for the applicant had cited para 44 of HC 80 in corroboration of his contention that 'family' deportations under para (c) applied only to wives and children. Eveleigh LJ had then drawn the Court's attention to s 5(4) of the 1971 Act, showing that a husband was not included as 'a person' to whom s 3(5)(c) could apply. Referring then to s 51 of the Sex Discrimination Act (providing that "nothing in Parts II to IV" should "render unlawful any act done by a person if it was necessary for him to do it in order to comply with a requirement" of an Act passed before this Act), counsel then contended that the exclusion in that section did not avail the Secretary of State, since he was not statutorily required to make a deportation order -- the matter was in his discretion. He also says that the failure to treat the two cases separately is in violation of that Act. To deal with the first point, in my opinion, the letter from the Home Office can only be regarded as granting leave to the Applicant under s 3 of the Act. That section provides by sub-s (1):"Except as otherwise provided by or under this Act, where a person is not patrial --... (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period..."
By sub-s (3) it is provided:"In the case of a limited leave to enter or remain in the United Kingdom, -- (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply..."
[1979-80] Imm AR 1 Then by s 4(1) of that Act it is provided:"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under s 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State..."
It seems to me that it is under that section that this letter from the Home Office must have been written. Mr Latham for the respondent claims that importance should be attached to the fact that the word 'leave' itself does not appear in the notice. I do not myself accept that contention. Anyone receiving this letter would conclude that he or she was being granted permission to remain lawfully in the United Kingdom for a period, a period that is to say until a decision was made. It would to my mind be wholly wrong to fault a person remaining in this country on the basis that the word 'leave' has not itself been used. In this connection it is relevant to notice that, in para 42 of HC 80, clearly referring back to the provisions of s 3(5) of the Act, the word 'authorisation' is used. n7 n7 See footnote 3, ante. I, therefore, have come to the conclusion that by that communication of 21 June 1973 this applicant was being granted "leave to remain" in the United Kingdom. That being so, it seems to me to follow that the decision of the Appeal Tribunal was wrong, as clearly appears from the passage which I have read. On the facts as stated in their determination this applicant was not a person who was in this country without authorisation. It is significant that the Tribunal itself uses that very word "authorisation". I, therefore, for that reason would allow this application. However, two other grounds were mentioned, which in the circumstances may be dealt with shortly. In so far as the Sex Discrimination Act 1975 is concerned Mr Fletcher-Cooke refers to s 6(2) of that Act, which provides:"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her --... (b) by dismissing her, or subjecting her to any other detriment."
It is argued in this case that the applicant was employed by the Crown, that she was by being a woman subjected to detriment either that her case was not being dealt with separately, or that, if it were the case, there was a decision to deport her under s 3(5)(c) . Alternatively, says Mr Fletcher-Cooke, if there was not discrimination there, there was discrimination under s 29. That section provides:"(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services --"
and then there follow the various ways in which discrimination can take place. [1979-80] Imm AR 1 Those sections are linked with s 1 and s 3 of the Act. Section 1 begins by saying:"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -- (a) on the ground of her sex he treats her less favourably than he treats or would treat a man..."
Section 3 reads:"(1) A person discriminates against a married person of either sex in any circumstances relevant for the purposes of any provision of Part II if -- (a) on the ground of his or her marital status he treats that person less favourably than he treats or would treat an unmarried person of the same sex..."
It is important to emphasise that both of those sections contain the words "in any circumstances relevant for the purposes" of the Act. They are referring to the sections of the Act which them selves make discrimination unlawful. Sections 1 and 2 do not make discrimination as such unlawful. It only becomes unlawful in the circumstances set out in what one might call the operative sections for that purpose contained in Part II and in other parts of the Act. Nowhere in the Act is there to be found a reference to the performance by the Secretary of State of his duties with which we are concerned, that is to say under the Immigration Act 1971. n8 For that short reason I would hold that the Sex Discrimination Act has no application whatsoever to this kind of case. n8 In respect to the Secretary of State's authority to make deportation orders, s 5(1) may be noted as well as s 3(5). Mr Fletcher-Cooke also raised another point of equitable estoppel. He bases this upon a letter written by the Department of Health to the applicant, and he said that letter of itself indicated to her than her position in the country was lawful -- I am summarising this -- and the Crown were therefore estopped. It is not necessary in view of what I have already said as to this application to go into that contention in detail. I would simply say, however, that the letter itself to my mind would in any event have created no estoppel even if it had been between private individuals. However, I will further take the view that another Department is not in a position in a case like the present one to bind the Secretary of State so as to fetter his discretion granted to him by statute, namely the Immigration Act 1971. n8 n8 In respect to the Secretary of State's authority to make deportation orders, s 5(1) may be noted as well as s 3(5). However, for the first ground with which I have dealt I myself would allow this application.Judgment Two:
STEPHEN BROWN J: I too would allow this application for the reasons given by my Lord, Eveleigh LJ.[1979-80] Imm AR 1Judgment Three:
LORD WIDGERY CJ: I am of the same opinion and would have reached the same conclusion for the same reasons. I merely pause for a moment to refer to one point which arose in argument yesterday in which, as it seemed to me, it was being contended that, if the facts of the case seem to fall within two or more of the terms of sub-paras (a), (b) and (c) of s 3(5), the Secretary of State had to make some kind of choice as to which he should proceed under. As I see it, there is no such obligation to choose, and the Secretary of State, faced with a case in which two or more of these paragraphs appear to apply, can use all or any of them as he thinks fit. n9 n9 For section 3(5) see footnote 5, ante. Mr Fletcher-Cooke, the Order of Certiorari will go.DISPOSITION:
Order accordingly.SOLICITORS:
Lickfolds, Wiley & Powles; Treasury Solicitor.Disclaimer: Crown Copyright
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