R v. Entry Clearance Officer, Bombay, Ex parte Amin

R v Entry Clearance Officer, Bombay, ex parte Amin

QUEEN'S BENCH DIVISION

[1980] 2 All ER 837, [1980] 1 WLR 1530

Hearing Date: 30 APRIL 1980

30 April 1980

Index Terms:

Commonwealth immigrant -- Appeal -- Appeal against refusal to issue special voucher admitting United Kingdom passport holder to United Kingdom - Whether right of appeal from entry clearance officer's decision - Whether special voucher an 'entry clearance' - Whether voucher evidence of eligibility for entry - Immigration Act 1971, ss 13(2), 33(1).

Held:

There is no right of appeal under s 13(2) a of the Immigration Act 1971 against the refusal of an entry clearance officer to issue a special voucher to a United Kingdom passport holder admitting him or her to the United Kingdom (under the scheme admitting each year a limited number of such passport holders suffering hardship in certain countries) because a special voucher is not an 'entry clearance' within ss 13(2) and 33(1) b of that Act since it is not evidence of eligibility for entry to the United Kingdom, but, on the contrary, a document dispensing with the necessity for such evidence by providing a factual basis for entry without the need to produce evidence of eligibility (see p 840 g to j, post). a Section 13(2) is set out at p 839 c, post b Section 33(1), so far as material, is set out at p 839 e, post

Notes:

For what constitutes entry clearance, and for the special voucher system, see 4 Halsbury's Laws (4th Edn) paras 981, 991. For the Immigration Act 1971, ss 13, 33, see 41 Halsbury's Statutes (3rd Edn) 34, 52.

Cases referred to in the Judgment:

Shah (SDL) v Secretary of State for the Home Department [1972] Imm AR 56.

Introduction:

Application for judicial review. Mrs Bhadrabala Arginbhai Amin applied, pursuant to leave granted on 13th January 1978, for judicial review of a decision of the entry clearance officer at Bombay that she was not entitled to a special voucher enabling her to enter the United Kingdom and that there was no right of appeal under s 13(2) of the Immigration Act 1971 against the decision. The facts are set out in the judgment of Lord Lane CJ.

Counsel:

K S Nathan for the applicant. David Latham for the Secretary of State. PANEL: LORD LANE CJ, GRIFFITHS AND WEBSTER JJ

Judgment One:

LORD LANE CJ. This is an application by Mrs Bhadrabala Arginbhai Amin for judicial review directed to the entry clearance officer at Bombay. The application is made pursuant to leave granted on 13th January 1978. This matter has already been before this court on one occasion, the court then being composed of two judges. They were unhappily unable to agree and so now the matter has been listed before this three-judge court. The case is all about what is called the 'special voucher quota' system and raises the question whether there is any right of appeal to the adjudicator against a decision to refuse such a voucher. Briefly, the history of these vouchers is as follows. Up to 1968 people with British passports by and large could come to this country freely, but the Commonwealth Immigrants Act 1968 imposed restrictions on such entry and raised the problem which the special voucher system sought to resolve. The problem was that a number of people holding British passports, and particularly Asians in East Africa, found themselves in grave difficulties in not being able to come to this country when their circumstances in East Africa made it essential for them to leave.What happened was that the government set up a system of admitting some of those people holding British passports by giving them these special vouchers. It was an administrative act and it was subject to a maximum of 5,000 people a year.The limitation put on the matter was this, that the special vouchers would only be granted to 5,000 heads of families.A quota of 5,000 heads of families might mean of course, according to the size of the family, a very much greater number of people coming in under the aegis of the system, though, as I understand it, the people coming in other than the head of the family would themselves have to have entry certificates. What happened in the present case was this. In 1973 the applicant's father applied for one of these vouchers for himself and his dependent children. At that time the applicant herself was already married to an Indian national and therefore was no longer dependent on her father. In due course vouchers were granted. The father and the family, apart from the applicant, duly entered this country, so I understand, at some time in the spring of 1975. Then on 19th April 1976 the applicant applied to the entry clearance officer at Bombay for one of these vouchers in order that she might be enabled to join her parents who were already here in the United Kingdom. That application was refused in May on the grounds that she was not the head of a family, which was a condition precedent which the Secretary of State had laid down as the basis for giving these vouchers. She was not the head of the family because she was married to an Indian national who himself was the head of the family and was not the holder of a British passport. These was correspondence between the applicant and the Home Office, and in due course the Secretary of State wrote a letter saying that he considered the entry clearance officer's view was correct. The applicant contends that she has a right of appeal to the adjudicator against that refusal by the entry clearance officer to give her a special voucher. The matter has been argued before us by counsel for the applicant with his usual skill and lucidity. He has referred us to the Immigration Appeals Act 1969, particularly s 2(1)(c) which contains wording similar to but not identical with the 1971 Act, which is the material Act for the purposes of this appeal. He has referred us likewise to the Instructions to Immigration Officers of 1970 (Cmnd 4298) and various provisions which were contained in that, and also to a decision of the Immigration Appeal Tribunal in Shah (SDL) v Secretary of State for the Home Department [1972] Imm AR 56 decided under those rules which supports the view put forward by the Secretary of State in this appeal, namely that the method of the issue of special vouchers is outside the appeals system. But, speaking for myself, although they are interesting as a matter of history, it does not seem to me that those references are of particular importance or of particular help in determining the question that we have to decide here. In order to determine that, one turns first of all to s 13 of the Immigration Act 1971 which deals with appeals to an adjudicator or tribunal in the first instance. The material subsection is sub-s (2) of s 13 which reads as follows:

'Subject to the provisions of the Part of this Act, a person who, on an application duly made, is refused a certificate of patriality or an entry clearance may appeal to an adjudicator against the refusal.'

One has next to determine whether the document in the present case, the special voucher, comes within the definition of 'entry clearance', and that is the whole nub of the problem.It is easy to state but not quite so simple to solve. First, one turns to s 33, which is the definition section, in order to find guidance as to the meaning of 'entry clearance'. Section 33(1) provides:

'... "entry clearance" means a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person's eligibility, though not patrial, for entry into the United Kingdom (but does not include a work permit)...'

That definition includes the expression 'in accordance with immigration rules', and on turns to a passage further down in the same section to discover what is the definition of 'immigration rules'. One finds this: '"immigration rules" means the rules for the time being laid down as mentioned in section 3(2) above.'

Section 3(2) reads as follows:

'The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances...'

The next publication to which one must pay regard is the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79), laid before Parliament on 25th January 1973 under s 3(2) of the 1971 Act. One turns there to para 38, which is the material paragraph. It is under Part IV, which is headed 'Passengers coming for settlement: United Kingdom passport holders.' Paragraph 38 reads:

'Where the passenger is a citizen of the United Kingdom and Colonies holding a United Kingdom passport, and presents a special voucher issued to him by a British Government representative overseas (or an entry certificate in lieu), he is to be admitted for settlement, as are his dependants if they have obtained entry certificates for that purpose and satisfy the requirements of paragraph 39; but such a passenger who comes for settlement without a special voucher or entry certificate is to be refused leave to enter.'

We are told that the words in brackets '(or an entry certificate in lieu)' were put there because in some cases what in fact was a special voucher was said on the face of it to be an entry certificate. Counsel for the applicant submits simply that, taking the definition section, s 33, it is plain that the special voucher is a document which in accordance with the immigration rules is to be taken as evidence of a person's eligibility for entry. That is his argument, beginning and end, and a very powerful one it is too, because on the face of it it looks as though a person presenting this document is presenting it as evidence of his eligibility for entry into the United Kingdom. The argument put forward by counsel for the Secretary of State is of necessity somewhat more complicated. He points out, first of all, that special vouchers are something out of the ordinary, extraordinary in the true sense of that word. They are designed to relieve hardship in particular parts of the world, and of course as hardship moves around different parts of the world, as it does, so the authorities may desire to apply the system to different parts of the world. It has, he suggests (and one is inclined to agree with him), to be operated from the centre rather than from the periphery. What he submits is that on the broad view, before one gets down to particulars, the special voucher system is outside the appellate system because it is not properly subject to the ordinary idea of an appeal. For example, if the present case were to go to an adjudicator, how would he set about the difficult problem of substituting his own discretion for that of the people (i) operating the scheme at the centre and (ii) distributing this scheme at the periphery? One can see that there would be very great difficulty indeed. In fact it is hard to see in most cases how he would be able to substitute what he thought was right for what those operating the scheme thought was right. The part of the Act to which he particularly refers, other than those which I have already mentioned, is s 19. Section 19(1) reads as follows:

'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.'

Those words, he submits, point to the difficulty which I have just endeavoured to explain. But the main point of his arguments is this. On the strict wording of the definition of 'entry clearance' in s 33, this document, he suggests, is not a document which 'is to be taken as evidence of a person's eligibility'. What it is, he says, is the factual basis which entitles a person to entry into this country, which is a very different matter from evidence of a person's eligibility. It is not evidence of eligibility, he submits. It is a document which dispenses with the necessity of such evidence because the person presenting it need do no more than present it, in distinction to the other members of the family coming, so to speak, behind the gentlemen holding the certificate who are subject to inquiry whether they are members of his family and so on. It is a very fine point, but, in my judgment, the way in which it is put by counsel for the Secretary of State is the correct way. In my view, this is not a document which is to be taken as evidence of a person's eligibility. It is a fectual basis entitling him to entry without further ado. For those reasons I would dismiss this application.

Judgment Two:

GRIFFITHS J. I agree.

Judgment Three:

WEBSTER J. I agree.

DISPOSITION:

Application dismissed.

SOLICITORS:

Suchak & Kanji (for the applicant); Treasury Solicitor.