R v. Immigration Appeal Tribunal, Ex parte Saleh

R v IMMIGRATION APPEAL TRIBUNAL Ex parte SALEH TH/95307/82

Queen's Bench Division

[1983] Imm AR 169

Hearing Date: 24 November 1983

24 November 1983

Index Terms:

Practise and Procedure -- Function of adjudicator -- Applicant granted entry as student and given extensions in that capacity -- Application for extension of stay for another purpose refused -- Appeals against this decision dismissed by adjudicator and Immigration Appeal Tribunal -- Manner in which an equivocal application could be considered -- Whether refusal of adjournment by adjudicator justified -- Immigration Act 1971 ss 14(1), 22(3) -- HC 394 paras 26, 27 90.

Held:

The applicant, a citizen of Egypt and a doctor of medicine, was granted entry on 5 July 1976 to carry out a research project on infant nutrition. He was granted extensions in the same capacity until 31 October 1981, but an application of 23 October 1981 for an extension of stay to pursue litigation in the courts of Scotland was refused. His appeal against the decision was dismissed by an adjudicator, and the Immigration Appeal Tribunal by determination refused him leave to appeal against that dismissal. The present application was for an order of certiorari quashing the determination of the Immigration Appeal Tribunal, and for an order of mandamus directing the Tribunal to consider the application for leave to appeal from the adjudicator. Held: (i) The adjudicator was entirely within his rights in refusing the applicant's application for an adjournment of the hearing. (ii) The adjudicator was not open to criticism for failing to summon the applicant's solicitor as a witness. (iii) Paragraph 90 of HC 394 ruled out the continued presence of the applicant under his existing permit.

Counsel:

SV Ahmed for the applicant; Simon Brown for the respondent PANEL: Nolan J

Judgment One:

NOLAN J. The Applicant in this case is Dr Saleh. He is a citizen of Egypt and a Doctor of Medicine. In 1976 he was recommended and selected by the Egyptian Government to carry out a research project on infant nutrition in the United Kingdom under a Government scholarship. He arrived in the United Kingdom on 5 July 1976. He was given leave to enter and remained and stayed here to carry out his studies until 31 October 1981. On 23 October 1981, he applied to the Home Office and requested an extension of his stay to pursue litigation in the courts in Scotland for financial loss and personal damages. That application was refused and against the refusal Dr Saleh appealed to the adjudicator. The adjudicator in turn decided against him and Dr Saleh exercised his right to appeal to the Immigration Appeal Tribunal. The decision of the Immigration Appeal Tribunal is the object of the application before me for judicial review. I am asked to make an order of certiorari quashing the determination of the Appeal Tribunal dated 26 October 1982, and for an order of mandamus directing that Tribunal to consider the application for leave to appeal from the adjudicator. Since the Immigration Appeal Tribunal's decision simply upholds that of the adjudicator with virtually no additional comment, it will be simplest and most convenient if I approach the matter by reference to the adjudicator's reasons. He noted that the grounds upon which the Applicant had appealed against the Home Office refusal were that he was not asking to stay on as a visitor, but for the purpose of obtaining justice and that his presence in the country was necessary for this purpose. The decision against him by the Home Office had been in these terms:

"You have applied for leave to remain in the United Kingdom to pursue legal action for damages but there is no provision within the immigration rules to allow you to remain for this purpose."

No further grounds of appeal were lodged. The adjudicator goes on to say:

"The case was set down for a hearing in Edinburgh on 9 September 1982. On 1 September 1982, however, the United Kingdom Immigrants Advisory Service sought an adjournment of the hearing on the grounds that they had only just been instructed. I directed that the application for an adjournment be refused. The Appellant had had since December 1981 to prepare his case. At the hearing the Appellant appeared alone. I again repelled a motion for an adjudicator and he conducted his own case. Mr JB Arkison, HM Chief Immigration Officer, appeared for the Respondent. The Appellant gave evidence."

The adjudicator then goes on to refer to the evidence about the prospective and already current litigation which fell into two parts; one claim for @1,000, which had failed but was subject to an appeal; and a claim for damages of @200,000, although it is clear that that so far had made little progress. The adjudicator continued in these terms:

"The Appellant said that his solicitor declined to represent him at this hearing or to send a representative to explain the position with regard to the suit. In general the Appellant said that he was 'ruined', that he could not return to Egypt and that he was 'stateless'. The exact grounds for his making such statements are unclear. He is by all accounts unmarried but is affianced to a Scottish woman resident here. At the moment he is supported from savings and the assistance of relatives. He made it abundantly clear that he will not willingly leave the country."

The adjudicator then gives what amounts to his decision in his final paragraph of reasons in these words:

"This is an appeal under section 14(1) of the Immigration Act 1971 against the refusal of the Secretary of State to extend the Appellant's stay in the United Kingdom. The Statement of Changes in Immigration Rules (HC 394) applies. As regards his litigation against Professor Forfar there is nothing I can usefully say in the absence of evidence from the Appellant's solicitors as to the basis of his claims. The matter is however only incidental to his immigration position. The Secretary of State was obliged to refuse his application to remain by virtue of paragraph 90 of the rules. The Appellant came here as a student and is not permitted to remain for some other purpose and more particularly a purpose for which an entry clearance is required. He is a 'visa national' within the meaning of that expression in paragraph 10. There is no occasion for him to be in this country for the purpose of the law suit unless and until it goes to a proof and his oral evidence is required."

That ends the adjudicator's decision. I note in passing that the grounds of the application for leave to appeal against that decision to the Immigration Appeal Tribunal simply said:

"The pursuer has suffered financial loss and damages in United Kingdom, and therefore, he wishes to follow the proceedings in United Kingdom and seek his redress by British Justice."

I have, however, thought it right to allow the applicant, through his counsel, Mr Ahmed, to review the decision of the adjudicator broadly in the context of the principles applicable to an application for judicial review. The first ground upon which Mr Ahmed attacks the decision of the adjudicator is that he erred in law by not allowing the applicant to have legal representation. That is another way of saying that the adjudicator erred in law in refusing the applicant his adjournment. Putting it more broadly, in argument, Mr Ahmed said that the decision to refuse an adjournment amounted to a breach of natural justice and also amounts to a breach of the requirement that justice should not only be done but should be clearly seen to be done. Specifically he referred to Section 22(3) of the Immigration Act 1971 which states:

"The rules of procedure" (that is, for proceedings before an adjudicator, among other things) "shall provide that any appellant shall have the right to be legally represented."

Provision to the same effect is made in Rule 26 of the Rules. So, said Mr Ahmed, it is unlawful for the adjudicator to refuse an adjournment so as to enable the applicant to be legally represented. It will be remembered, however, that in refusing the adjournment the adjudicator drew attention to the fact that the appellant had had since December, 1981, to prepare his case. It seems to me that it really cannot be right to read into Section 22(3) an unlimited ability on the part of applicants who come before a Tribunal to say that they have only just instructed their legal representatives and that, in consequence, the legal representatives are not prepared to argue the case and an adjournment must be granted. The delay in approaching the Immigrants Advisory Service was apparently not explained to the adjudicator and has not been explained in evidence before me. On the face of it the adjudicator was entirely within his rights in refusing the adjournment. So the first ground on which the decision is attacked must fail. Mr Ahmed then draws attention to the fact that the applicant's solicitors, who could have given an account of the litigation, one assumes, were not present at the hearing and that referring to that the adjudicator had said:

"As regards his litigation against Professor Forfar there is nothing I can usefully say in the absence of evidence from the Appellant's solicitors as to the basis of his claims."

There is power in the rules governing immigration appeals, says Mr Ahmed -- and in particular in Rule 25, or failing that Rule 27 -- for the adjudicator to have summoned the solicitor to tell him about the litigation and he should have done so. As to that, Rule 25 could not in my judgment be applicable, because that authorises the appellate authority to request any party to the appeal to furnish particulars. Rule 27 on the face of it would enable the adjudicator to summon any witness that he thought could help. But there are two considerations to bear in mind here. It is not, as I see it, the function of the adjudicator to make out the case of a litigant for him. It is his function to be neutral, although of course helpful. Secondly, and perhaps more to the point, it would be a remarkable and generally unproductive measure for someone in a judicial position to summon the solicitor to one of the parties for the purpose of giving evidence. The information which the solicitor was able to give in this instance would have been covered by professional privilege and his position would have been embarrassing in the extreme. Therefore for that reason alone it would not seem to me that the adjudicator was open to criticism for failing to summon the solicitor as a witness. It is to be noted that in any event the adjudicator deals with the absence of the solicitor by adding:

"The matter is however only incidental to his immigration position."

What is contained in that remark appears from a consideration of the remaining grounds of this application. The third ground which Mr Ahmed put forward was that the adjudicator was wrong in law in saying that the Secretary of State was obliged to refuse the application to remain by virtue of Paragraph 90 of the Rules. He draws my attention to Paragraph 90 which, so far as relevant, says this:

"People admitted as visitors or students or for other temporary purposes have no claim to remain here for any other purpose. In particular, applications to remain are to be refused where the application is to remain for a purpose for which an entry clearance is required."

I pause there to note that, as Mr Ahmed I think rightly says, this appears to be the portion of Rule 90 to which the adjudicator was referring. There is, however, a third sentence in Rule 90 which reads:

"Applications to remain for other purposes may be granted, provided that the relevant requirements of these rules are met, unless it appears that the applicant is attempting to remain permanently."

Mr Brown, for the respondent, acknowledged that there was a doubt about the correctness of the adjudicator's reasoning, if indeed his reliance upon Paragraph 90 of the Rules was sought to be justified by the second sentence. There is a possible ambiguity in the reference to applications "for a purpose for which" an entry clearance is required. As a visa national within the meaning of Paragraph 10 of the Rules, the appellant would require an entry permit for whatever purpose he came to this country. Those who are not visa nationals, however, might or might not require entry clearance, depending upon the purpose of their visit. If I had to decide the matter I would be minded to hold that the latter category of applicants was what the draftsman of Paragraph 90 had in mind. Be that as it may, in assuming for the sake of argument that the adjudicator was at fault in the construction he apparently placed on the sentence, one is left with the third sentence of the paragraph. The closing words of that sentence, I repeat, are: "Unless it appears that the applicant is attempting to remain permanently". The word "permanently" is not defined but it brings one back to the finding of the adjudicator, which is a finding of fact, that the appellant had made it abundantly clear that he will not willingly leave the country, that he could not return to Egypt and that he was stateless. In support of what amounts to the same proposition, Mr Brown said that although a litigation purpose was not expressly covered by the Rules, it could only sensibly be fitted in to two possible categories. One is that for which a visitor might come to this country, but in that event Rule 94 would be applicable and in that Rule too the permission is only to be given if the visitor intends to leave at the end of his visit. Here too, says Mr Brown, on the findings of the adjudicator that is not made out. The alternative would be for the visit to be allowed by the Secretary of State outside the requirements of the Rules by virtue of inherent discretion which he is said to possess. If such a discretion indeed exists it would appear there would be no legal right to question it. The point is not an entirely easy one and there is, I think, some question about the correctness of the construction of the adjudicator for reasons that I have indicated, but it appears to me that at the end of the dayParagraph 90 of the rules does indeed, if not for the reasons given by the adjudicator, rule out the continued presence of the applicant under his existing permit. Mr Ahmed criticises the reference by the adjudicator to Paragraph 10, which is of course dealing with entries, but in the context and in order to explain the phrase "visa national" it seems to me to have been a harmless and necessary remark. Finally, says Mr Ahmed, as the applicant is the plaintiff in what is bound to be difficult litigation involving much conflict of evidence, the adjudicator was wrong to say that there is no occasion for him to be in this country for the purposes of the law suit unless and until it goes to proof and his oral evidence is required. As to that, I would accept that it may well be necessary for the applicant, if he is to pursue the litigation with vigour and with the attention it demands, to come to this country for a period before as well as during the trial. This, it seems to me, is the substantial question in the case. I am told, however, by Mr Brown that even on the basis of the decision now under attack, it is in the nature of things likely that the applicant will be here for many, many months more and will have many opportunities to make representations against any attempt to deport him, including representations related to the litigation, before any question of a deportation order being put into effect arises. I would add that I understand it to be the law that there is no objection in principle to those who do not live in this country coming to this country as visitors to conduct litigation and staying for whatever time is reasonably necessary for that purpose. Therefore, I see no fear here of Dr Saleh being in effect shut out of court or deprived of his legal rights by the decision of the Immigration Appeal Tribunal. For all those reasons the application is dismissed.

DISPOSITION:

Application refused

SOLICITORS:

Dr F Izbal; Treasury Solicitor.