R v. Immigration Appeal Tribunal, Ex parte Aisha Khatoon Ali

R v IMMIGRATION APPEAL TRIBUNAL Ex parte AISHA KHATOON ALI, TH/33050/78(1448)

Queen's Bench Division

[1979-80] Imm AR 195.

Hearing Date: 18 November 1980

18 November 1980

Index Terms:

Immigration Rules -- Rules for Control on Entry and Rules for Control after Entry -- Cross-fertilisation of Control after Entry rules by Control on Entry rules -- Entry as visitor -- Application after entry for revocation of visitor's limited leave with view to settlement -- Claim on appeal against refusal of application that should have been admitted as a 'returning resident' under the Rules for Control on Entry -- Whether such claim by visitor permissible in the absence of any reference to 'returning resident' status in the Rules for Control after Entry -- Strict application of the rules by the immigration appellate authorities -- HC 82, paras 7-10, 27 -- HC 81, paras 13, 47, 72 -- Immigration Act 1971, s 19(1)(a)(ii), (2), s 20(1).

Returning resident -- Entry as visitor -- Application by woman for removal of restrictions on stay on ground of patriality inoperative by reason of previous divorce in Pakistan -- Claim on appeal that should have been admitted as a 'returning resident' under the Rules for Control on Entry -- 'Returning resident' status not mentioned in the Rules for Control after Entry -- Cross-fertilisation by the Rules for Control on Entry not therefore permissible -- Claim effectively a request that the Secretary of State use his discretion to "depart from the rules" -- Strict application of the rules -- HC 82, paras 7-10, 27 -- HC 81, paras 13, 47, 72 -- Immigration Act 1971, s 19(1)(a)(ii), (2).

Held:

Mrs A was a Pakistan citizen; she had been brought to the United Kingdom by her husband in 1967 and had been granted leave to remain without conditions. She left the United Kingdom in 1972 purporting to return after visits to Saudi-Arabia and Pakistan. In 1974 her husband divorced her by 'Talaq' divorce in Pakistan and she became ill. In November 1977 on her enquiry of an ECO in Karachi she was told that in consequence of the divorce she was not entitled to return to the United Kingdom for settlement. In December 1977 she was admitted as a visitor for 4 months. A month later she applied to have the restrictions on her stay removed. Her application was refused and she appealed successively to an adjudicator and the Tribunal. She sought before the Tribunal to pray in aid the status of "returning resident"; the Tribunal rejected this claim, holding that it contained a fatal flaw in that the appeal was not against a refusal to issue an entry clearance nor a refusal to admit her to this country but against a refusal to vary the conditions of her admission. Mrs A moved in the Divisional Court for judicial review of the Tribunal's decision. Held (dismissing the application): The Tribunal had rightly dismissed Mrs A's appeal for the following reasons: [1979-80] Imm AR 195. (i) The appeal being that of a person who had been admitted as a visitor under para 13 of HC 81 (the Rules for Control On Entry), it had to be considered under the provisions relating to visitors in the Rules for Control After Entry, and in those rules, HC 82 paras 7-10 and 27, there was no mention of circumstances in which "returning resident" status could be claimed by a visitor; Per curiam: Only on a cross-fertilisation between the Control On Entry rules and the Control After Entry rules could Mrs A's claim have had any chance of success (p 201, post); (ii) Mrs A was in effect saying that the Secretary of State should have "exercised his discretion" to "depart from the immigration rules"; and in such a case an adjudicator was required under s 19(1)(a)(ii) and (2) of the Immigration Act 1971 to dismiss an appeal; n1 n1 The Tribunal by virtue of s 20(1) of the 1971 Act is also bound by the provisions relating to adjudicators in s 19(1) & (2), for s 20(1) states that the Tribunal may "affirm the decision" of an adjudicator "or make any other determination which could have been made by the adjudicator". (iii) (applying the decision of the Divisional Court in R v Immigration Appeal Tribunal, ex p Martin, [1972] Imm. A.R. 275), the immigration rules must be applied strictly by the immigration appellate authorities (p 202, post); Per curiam: On a strict interpretation of the rules there was no way under the 1971 Act or the rules in which Mrs A could properly succeed.

Counsel:

M. Beloff for the applicant. D. Latham for the respondent. PANEL: Lord Lane CJ, Webster J

Judgment One:

LORD LANE CJ: In this case Mr Beloff, on behalf of Mrs Aisha Khatoon Ali, applies to this Court for judicial review to be directed to the Immigration Appeal Tribunal pursuant to leave granted on 8 October 1979. The circumstances are these. The Tribunal dismissed the applicant's appeal from an adjudicator who on 19 October 1978 had dismissed her appeal against the Home Secretary's refusal in June 1978 to vary the conditions of her leave. The factual situation is this. The applicant is a citizen of Pakistan. In August 1966 she married a man called Syed Nazir Ali, who had a right to remain in this country. In 1967 she was brought to the United Kingdom by her husband and was then granted leave to remain without any conditions. In 1972 her husband became registered as a citizen of the United Kingdom and Colonies and, apart from two visits outside the country, she remained here until 12 December 1973, when she went with her parents out of the country to Saudi Arabia. She then later travelled to Pakistan in order to attend her sister's marriage in that country. [1979-80] Imm AR 195. Unfortunately, as eventually transpired, her husband in the meantime had tired of the marriage. The first indication which she received of this was when no ticket and no money were forthcoming from her husband for her to travel back to this country. In December 1974 the estrangement was made apparent, because the husband then travelled to Pakistan where he divorced the applicant by means of "Talaq". In December 1975, it seems, he contracted another marriage with a different woman in the United Kingdom. The applicant then fell ill, possibly because of her personal difficulties. In November 1977 she consulted the entry clearance officer in Karachi, where she was told that, because of the divorce by Talaq, she was not entitled to return to the United Kingdom for settlement. Nevertheless, on 23 December 1977 she returned to the United Kingdom and was admitted for four months as a visitor. She then applied to have the restrictions on her stay removed. But on 26 June 1978 the Secretary of State refused her application. She appealed to an adjudicator and then to the Tribunal and, as has already been indicated, her applications and appeals failed. In the first instance when she applied for the conditions to be removed on 23 January 1978, she argued that the Talaq divorce was invalid and should not be recognised, and that she was entitled to the benefit of patriality. The recent decision in Quazi v Quazi n2 of the House of Lords rendered that argument inoperative. On 26 June 1978 the application was refused. n2 [1980] AC 744: [1979] 3 All ER 897. When the appeal was made to the Tribunal there was a new point taken. Then she tried to pray in aid her status as a returning citizen of the United Kingdom. This argument seems to have impressed the Tribunal to some extent, because if one turns to the material part of their decision, one reads these words:

"We considered these submissions. With respect to Mr Plender's very ably presented and very carefully researched arguments we consider that they contain a fatal flaw. They overlook the fact that this is not an appeal against a refusal to admit the appellant to this country, nor against a refusal to issue entry clearance. This is an appeal against a refusal to vary the appellant's conditions of admission to this country. If the appellant had claimed to be admitted to this country as somebody settled here, and then been refused, we consider that Mr Plender's arguments would have been of considerable weight. This was not the case however."

The question for the Tribunal was, what were the appropriate rules for them to consider? Under s 19 of the Immigration Act 1971 the following provisions are made: "(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him 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. [1979-80] Imm AR 195.

"(2) For the purpose of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) 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."

If the only applicable rules were the Control After Entry Rules for Non-Commonwealth Nationals, then the application here was condemned to failure. If one turns to HC 82, and looks at para 7 to 10, one finds the following provisions under the heading "Visitors": "7. People admitted as visitors will have satisfied the Immigration Officer that their intention was to come for a limited period. Most of them will have been admitted for a stay of 6 months; but the Immigration Officer may have authorised entry for a shorter or longer period, and may have imposed a condition prohibiting employment. "8. Where a visitor wishes to extend his visit, and provided that he has sufficient means to support himself and any dependants without working for the remainder of his proposed stay and intends to leave at the end of it, an extension should be granted. If the applicant appears to have a prima facie case for settlement as a person of independent means (paragraph 27) the application should be dealt with on that basis. Otherwise, if it appears that he is attempting to settle here the application should be refused. "9. 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.

"10. Where a visitor applies for an extension of stay to undergo or continue private medical treatment, information should be obtained about the progress made with the treatment, its likely duration and the visitor's ability to meet the cost. Depending on the outcome of the enquiries, an extension of stay may be granted."

Accordingly, there is no provision there which assists the applicant in this case. But what Mr Beloff contends is this, that this applicant was entitled to pray in aid the Rules On Entry, and in those circumstances she would gain not only considerable assistance, but would be entitled to have this matter go back before the Appeal Tribunal to be reconsidered, and indeed, if that preliminary contention is correct, it is not disputed on the part of the respondent that this matter should go back to the Appeal Tribunal. There were two sets of rules: first of all the pre-1971 Act rules, and secondly, the post-1971 Act rules. Before the Tribunal a great deal of time was taken up in discussing which of the two sets of rules was applicable and related matters arising therefrom. But now Mr Beloff has very helpfully conceded that there was no real difference between the old rules and the new rules so far as this particular immigrant was concerned, in view of the finding of fact of the Tribunal which I have already read. [1979-80] Imm AR 195. So the question, and the only question, is do the Control On Entry Rules apply or not? Or perhaps put more accurately, can they be prayed in aid in order to supplement what Mr Beloff says is a lacuna which would otherwise be present in the rules and in order to remedy what Mr Beloff describes as unfairness which would otherwise exist in the rules. First of all Mr Beloff submits, correctly, that nowhere in s 19, the material part of which I have read, or indeed in s 20, n3 does the 1971 Act expressly say that the Control On Entry Rules apply only on entry, and there is nothing to that effect in the Act. As to that, one would not expect such a provision in the Act. He then submits that if the situation is as in the present case, no conditions as to time or employment should have been imposed upon this lady when she came into this country and they were therefore wrongly imposed; it would, he submits, be very peculiar if an applicant asking for variation of the restrictions should be restricted to reliance on matters which have occurred since entry and is prevented from relying on the fact that the conditions were wrongly imposed in the first place. n3 Section 20 provides for appeal to the Tribunal from the determination of an adjudicator and sub-s (1) states that "the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator". What he suggests is this: that where a perfectly genuine visitor comes in and has a time limit imposed on his stay, as it undoubtedly will be and then changes his mind and wishes to stay here as a permanent resident, then, if the respondents are right, there is no quick way of doing that: the only way will be for him to leave the country and come in again and there on entry to make his application to stay as a resident, and if that is refused, it may very well be that he may have to go back to his point of origin in order to appeal against that refusal. That, submits Mr Beloff, is a state of affairs which the Act cannot be taken to have contemplated. If the applicant had said at the time of entry "I am entitled to indefinite leave", says Mr Beloff, then, if one looks at para 72 in HC 81, the immigration officer would have had to give her certain information. Accordingly let me read the rule: It is headed "Rights of Appeal":

"72. Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused."

On that, submits Mr Beloff, if she had said at the time of entry "I am entitled to indefinite leave", the immigration officer would thereupon have pointed out her right to apply for a variation to the Home Office and her right of appeal should the Home Office refuse her application. The further submission is that that by implication gives her the right to rely on the Control On Entry Rules (HC 81), although she was applying after entry to have the restrictions on her stay in this country removed. The way in which Mr Beloff rounds off his submissions is this. He submits it must be envisaged that one can fill in those gaps in the Control After Entry Rules (HC 82) by praying in aid the Control On Entry Rules (HC 81) and vice versa. Therefore in these circumstances, where the application to vary is made on the basis not of changed circumstances nor of circumstances which will change in the future, but on the basis that the imposition of conditions was wrong in [1979-80] Imm AR 195. the first place, then the Control On Entry Rules apply by virtue of s 19(1) of the Immigration Act 1971 (which I have already read) and, if that is true, he submits, the Tribunal erred and the matter should be remitted. On the other hand Mr Latham for the respondent submits that the situation is perfectly plain, although the result, he concedes, may be harsh. He pointed out, and pointed out correctly, that the applicant here applied for a variation of her leave in circumstances which make it plain that she was asking for the exercise of the Secretary of State's discretion in her favour by 'departing from the rules' and, in the light of the provisions of s 19(2) of the 1971 Act (which I have already set out), that precludes an appeal. The Secretary of State says that the applicant as a visitor with a limited leave to remain here, asked for the time condition to be varied. She did not, and could not, point to any rule which applies to her which would give her either the right to an extension of time or to the deletion of the time condition or even, under the rules, the discretionary privilege to an extension of time or the removal of the condition. Of course the rules relating to her are plain, and these are the rules which I have read, namely paras 7 to 10 of HC 82. In para 7 one sees these words:

"People admitted as visitors will have satisfied the Immigration Officer that their intention was to come for a limited period."

So it is perfectly plain from that rule that this lady was expressly saying that she had only come or intended to come for a limited period and that if she had said otherwise, her application for leave would plainly have been refused. This is reinforced by para 13 of HC 81, which reads as follows:

"A passenger seeking entry as a visitor is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him and can, without working, support himself and any dependants for this period and meet the cost of the return or onward journey. Visitors coming to stay with relatives or friends are also to be admitted if the immigration officer is satisfied that no more than a visit is intended and that the support available is adequate. But in all cases leave to enter should be refused if the Immigration Officer is not so satisfied; and in particular leave to enter should be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted."

Paragraphs 8, 9 and 10 set out the circumstances in which visitors can ask for an extension and, as has already been made plain, there is no mention of the present circumstances at all. The only other possibility for the applicant, points out Mr Latham, is to be found in paras 26 and 27 of HC 82, which read as follows:

"26. When a person admitted in the first instance for a limited period has remained here for 4 years in approved employment or as a businessman or self-employed person or a person of independent means, the time limit on his stay may be removed..."

That does not apply here, nor does the rest of that paragraph, nor does para 27, which reads: "Where a visitor applies for permission to settle here as a person of independent means evidence is to be sought that he has means under his own [1979-80] Imm AR 195. control and disposable in this country sufficient to support himself..." The applicant can derive no help from that. The long and short of the matter is this, that if one applies strictly the provisions of the Act to which reference has already been made, and if one applies strictly the various rules which are or may be material to this case, the applicant must necessarily fail, and it is only if one can get a cross-fertilisation between the Control On Entry Rules and the Control After Entry Rules that Mr Beloff's submissions have any chance of success. It seems to me there is no reason, looked at as a matter of first impression, why the rules should not be so strictly applied. If we are in doubt about the matter, that doubt seems to me to be set at rest by a decision of this Court in July 1972, R v Immigration Appeal Tribunal, Ex parte Martin n4. In that case a commonwealth citizen, a Miss Martin entered the United Kingdom as a visitor, was granted an extension to stay as a working holiday-maker up to a period of three years after 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 para 22 of Cmnd 4295 and that it was a relevant factor under that rule and under para 4 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 para 10. The Tribunal, by a majority reversing the adjudicator, held that the Secretary of State had properly refused to grant Miss Martin an extension of stay. n4 [1972] Imm A R 275. She applied to the Divisional Court 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."

LORD WIDGERY CJ said this: "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 [1979-80] Imm AR 195. 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 Section 8 of the Immigration Appeals Act 1969 and s 19 of the Immigration Act 1971 are in identical terms. After discussing other matters the learned Lord Chief Justice said this: "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 cannot, 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 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 of Cmnd 4295 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 authorised 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."

It seems to me that that case and its result have produced a harsher end than would be caused in these particular circumstances, if this application were to fail. What is made clear from that case is that the rules must be applied strictly and consequently it seems that Mr Beloff's submission, attractive though it was, forcefully argued undoubtedly as it was, must fail. On a strict interpretation of the rules the arguments put forward on behalf of the respondent by Mr Latham are correct and his initial submission, namely that there is no way under the Act or under the rules in which this lady can properly succeed, is correct. Accordingly I would dismiss this application.

Judgment Two:

WEBSTER J: I agree. [1979-80] Imm AR 195.

DISPOSITION:

Application dismissed.

SOLICITORS:

Messrs Albert Aung & Co; Treasury Solicitor.