Shamseddin and another v. Secretary of State for the Home Department

SHAMSEDDIN AND ANOTHER v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/67143/80(2016)

Immigration Appeal Tribunal

[1981] Imm AR 66

Hearing Date: 30 April 1981

30 April 1981

Index Terms:

Independent means -- Variation of a current limited leave to remain as visitor -- Application for this changed status made after 14 November 1979 -- Refusal after 1 March 1980 -- Applicant not entitled to the variation sought because not originally admitted as a person of independent means -- HC 394, paras 113, 157, 158.

Immigration Rules -- Operation of HC 394 -- Variation of current limited leave as visitor -- Application to enable applicant to remain as a person of independent means made after 14 November 1979 -- Refusal after 1 March 1980 -- Change of status from visitor to person of independent means not permitted under HC 394 in light of relevant dates -- HC 394, paras 113, 157, 158.

Held:

The appellants, citizens of Iran, were a father ('Mr S') and schoolboy son. As a member of a diplomatic mission Mr S with his family and under s 8(3) of the Immigration Act 1971 been exempt from the immigration control provisions relating to non-patrials under the Act. In July 1979 Mr S's employment at the Iranian Embassy was terminated and he applied the same month to the Secretary of State for a year's extension of stay in this country on the ground that this would enable his son (then aged 10) to complete his primary education at a State school. On 14 December 1979 he was granted an extension to 31 July 1980 subject to a condition prohibiting his engaging in employment or entering any business or profession. On 20 December he lodged a notice of appeal to an adjudicator under s 14(2) of the Act. n1 Mr S's fifth ground of appeal stated that he would like to remain here as a person of independent means. The Secretary of State treated this ground as a fresh application and on 11 March 1980, acting under para 113 of HC 394, refused it. n1 As a person who, on ceasing to be exempt from immigration control under s 8(3) of the 1971 Act, had been given a limited leave to remain, Mr S was entitled to appeal to an adjudicator under s 14(2) "against any provision limiting the duration of the leave or attaching a condition to it". Mr S's appeal to an adjudicator against this decision was dismissed, the adjudicator holding that the decision was properly made under para 113 read in conjunction with para 157 of HC 394 and with the judgment of the Divisional Court in Nathwani's Case n2, rather than under the corresponding rule in the earlier rules for control after entry, HC 82. n2 R v Immigration Appeal Tribunal, ex parte Dipak Kumar Nathwani, [1979] Imm. A.R. 9, d 23.2.79. On further appeal to the Tribunal, Held (dismissing the appeal): The adjudicator had not misdirected himself as to the proper immigration rules applicable: The rule relating to variation of leave to remain as a person of independent means was properly in this case para 113 of HC 394 (and not para 27 of HC 82), because Mr S's application was made after 14 November 1979, and refused after 1 March 1980, so that paras 157 and 158 of HC 394 governed the refusal. n3 n3 Paragraph 113 of HC 394 makes provision for extensions of stay to be granted to persons who have been admitted as the holders of entry clearances issued to them as persons of independent means, but the rule also states that "People given limited leave to enter or remain in some other capacity have no claim to remain as persons of independent means and their applications for extension of stay or lreave to remain in this capacity are to be refused". Paragraphs 157 and 158 of HC 394 appear under the heading "Transitional Provisions". Paragraph 157 states that subject to certain exceptions contained in the following paragraphs "these rules apply to all decisions taken on or after 1 March 1980". Paragraph 158 provides, so far as here material, that "An application made on or before 14 November 1979 will be decided under the provisions of HC 79, HC 80, HC 81 or HC 82 as appropriate and not under the corresponding provisions of these rules". The appellants were not present, nor were they represented.

Counsel:

D. Massey for the respondent. PANEL: A. Hooton Esq, Vice-President, A. S. Newman Esq, Dr S. Torrance

Judgment One:

THE TRIBUNAL: The appellants are citizens of Iran, father and son. The principal appellant was formerly employed as the Cultural Counsellor in the Iranian Embassy in London. Whilst so employed he and his family were exempt from the provisions of the Immigration Act 1971 relating to those who are not patrial by virtue of s 8(3) of the Act. On 12 July 1979 he wrote to the Home Office informing it that his term of office had ceased due to the closure of his department and that he had handed in his diplomatic passport. He went on to seek permission for himself, his wife and his son to remain in this country for one more year until termination of the boy's education in a State primary school. The Secretary of State acceded to Mr Shamseddin's request, and the notice sent to him on 14 December 1979 was in the following terms: "You are no longer exempt from the provisions of the Immigration Act 1971 relating to those who are not patrial. The Secretary of State grants you leave to remain until 31 July 1980 on condition that you do not engage in employment paid or unpaid and do not engage in any business or profession." Section 14(2) of the 1971 Act provides inter alia that any person who, on ceasing to be entitled to an exemption under s 8(3), "is given a limited leave to remain may appeal to an adjudicator against any provision limiting the duration of the leave or attaching a condition to it". The appellants exercised this right of appeal on 20 December 1979 and the fifth ground of Mr Shamseddin's appeal read as follows:

"5. The appellant would like to remain here as a person of independent means."

The Secretary of State considered (and in the opinion of the Tribunal correctly considered) this ground of appeal to be an application to revoke or vary the conditions attached to the limited leave granted on 14 December 1979. He refused it on 11 March 1980, the notice of refusal stating:

"You have applied for leave to remain in the United Kingdom as a person of independent means but you were given leave to remain as a visitor."

Appeal was lodged on 14 March 1980 against this refusal. Mr C O Richards heard the appeals on 18 September 1980. He dismissed them, giving his reason for dismissing the appeal against the refusal of the Secretary of State to allow the principal appellant to remain as a person of independent means as follows: "I have considered the facts which are not in dispute and find that the decision was in accordance with rule 113 of HC 394 in conjunction with rule 157 of the same Paper and the judgment of the Divisional Court in Nathwani's case n4 on 23 February 1979. n4 See footnotes 2 and 3, ante. The appeal is therefore dismissed. I note that the appellant had himself notified the Home Office of his change of status and that he has an income of more than @10,000 per year which was not disputed. His young son is now attending a fee-paying school in the United Kingdom and it has not been suggested that his conduct is other than good. Had the appellant applied for permission to remain as a person of independent means on 12 July 1979 his application might have been considered under the relevant rule in HC 82. In view of the circumstances which now prevail in Iran and the fact that the British Visa Office has been closed and all the facts of this case, it is recommended that this case be reconsidered by the Home Office on its merits outside the strict application of the immigration rules relating to persons of independent means." The appellants have appealed to the Tribunal against the adjudicator's determination. The grounds of appeal are as follows: "1. Since the appellant informed the Home Office of change of his status on 12 July 1979, the relevant rules under which his application should have been considered are rules in HC 82 and not in accordance with rule 113 of HC 394 read in conjunction with rule 157 of the same Paper. In the circumstances the learned adjudicator made an error of law in disallowing the appeal". 2. Since the appellant had frankly informed the Home Office of change of his circumstances and had provided Home office with all the relevant information prior to existing rules coming into force his application and that of his wife ought to have been considered under the rules prevailing on 12 July 1979". Neither the appellants nor their solicitors were present at the hearing of the appeal. As the Tribunal was satisfied that they had been given due notice, it proceeded with the hearing in their absence (r 34(2) of the Immigration Appeals (Procedure) Rules 1972 refers). The Tribunal does not agree with the allegation in the grounds of appeal that the adjudicator misdirected himself by applying the wrong immigration rules. The application to remain as a person of independent means was made subsequent to 14 November 1979, namely on 20 December 1979 and it was decided after 1 March 1980, namely on 11 March 1980. So HC 394 and not HC 82 governs the refusal (paragraphs 157 and 158 of HC 394 refer) n5. The appropriate rule relating to variations of leave to remain as a person of independent means was thus para 113 of HC 394. n5 Under that rule the Secretary of State had no alternative but to refuse the application. n5 For the relevant provisions in paras 113, 157 and 158, see footnote 3, ante.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Singh and Ruparell, Ealing.