R v. Immigrational appeal Tribunal, Ex parte Brazino Craecel John Fernandez

R v IMMIGRATION APPEAL TRIBUNAL ex parte BRAZINO CRAECEL JOHN FERNANDEZ

Queen's Bench Division

[1987] Imm AR 409

Hearing Date: 10 April 1987

10 April 1987

Index Terms:

Legitimate expectation -- special voucher -- grant of voucher of limited duration -- whether after expiry of validity of his voucher there is a legitimate expectation that a person will still be admitted to the United Kingdom.

Practice and procedure -- application for leave to appeal to the Tribunal -- where a hearing is required. Immigration Appeals (Procedure) Rules 1972, r. 16(5): Immigration Appeals (Procedure) Rules 1984, r. 16(6).

Refusal Notice -- advice as to representation by the United Kingdom Immigrants Advisory Service -- whether the wording misleading as suggesting that no other representation before the appellant authorities is permissible.

Held:

The applicant for judicial review was a citizen of Kenya. In 1975 with his parents and siblings he was granted a special voucher. It was not used. Another voucher was issued in August 1976: it was valid for six months. The rest of the family came to the United Kingdom after borrowing money to pay the fares: the applicant remained in Kenya to discharge the debt. The applicant thereafter made a number of visits to this country. In 1984 an application was made for him to be granted indefinite leave to remain. It was refused. On appeal, it was conceded by the applicant's representative from UKIAS that the applicant had no claim under the immigration rules to remain in the United Kingdom. The Vice-president of the Tribunal refused leave to appeal to the Tribunal without a hearing. Before the Court it was submitted that there were special circumstances that should have led to an oral hearing of the application for leave to appeal: having been granted special vouchers in the past, the applicant had a legitimate expectation that he would be permitted to settle in the United Kingdom. It was also submitted that the applicant had been misled by the notice of refusal which advised him of the opportunity to be assisted by UKIAS. It was so worded that he was not aware that he could have elected to have other legal representation. Held: 1. Both special vouchers granted to the applicant were of limited duration. When a special voucher granted in those terms expired, no legitimate expectation founded on it, survived. 2. There was thus no arguable point of law in the application for leave to appeal to the Tribunal, and hence no special circumstances which required a hearing of the application pursuant to the Procedure Rules. 3. The wording of the refusal notice was not misleading, as argued by counsel. In any event, the outcome of the appeal on the facts could not have been different, whoever had represented the applicant before the adjudicator.

Cases referred to in the Judgment:

No cases are referred to in the judgment.

Counsel:

KS Nathan for the applicant; R Jay for the respondent. PANEL: Mann J

Judgment One:

MANN J. There is before the court an application for judicial review. I gave leave to move on 18 October 1985. The applicants are three in a number; a husband, a wife and their child. The destiny of the wife and child is wholly dependent upon that of the husband and I shall not refer further to them. The respondent is the Immigration Appeal Tribunal. The decision impugned is a decision of 14 May 1985, whereby the Vice-President of the Appeal Tribunal refused leave to appeal against the decision of an adjudicator. That refusal was upon a consideration of the documents only. In order to appreciate the case, it is necessary to go back some distance in time. The applicant, Brazino Fernandez, is a member of a large family. They are Commonwealth citizens, being citizens of Kenya. On 10 October 1975, the head of the family, that is to say, the applicant's father, applied to the British High Commission in Nairobi for a quota voucher granting entry clearance for himself, his wife and children to the United Kingdom. In that application the age of Brazino Fernandez was truly disclosed. He was at that time 22. A quota voucher was issued, but could not be taken up. Accordingly, a further quota voucher valid for six months was granted on 1 August 1976. The voucher is endorsed upon the applicant's father's passport and was valid for six months only. The applicant's passport has been lost, but it is accepted that the passport would have had a separate endorsement, presumptively in identical terms to those which appear upon the fathers' passport. That would seem to be correct because the applicant would not have been travelling as a dependant of his father, hence the separate endorsement. The family was confronted with a practical problem in that they could not afford the necessary air fares to the United Kingdom. A loan was arranged and it was a term of the arrangement that the present applicant should remain in Kenya in order to discharge the indebtedness. His father, mother, brothers and sisters came to this country, but the applicant remained to work and pay off the debt which the family owed. The six month period for his entry clearance expired. It appears that he must have appreciated the expiration because he made, on a date now unknown an application for entry clearance, which was refused on 11 Janaury 1979. It was refused on these grounds. "You have applied for an entry clearance to enable you to join your parents in the United Kingdom for settlement, but you are over 21 years of age and the Secretary of State is not satisfied that you qualify for admission under any of the Immigration Rules.' There was no appeal against the decision. Some years passed by. The applicant visited this country as a visitor on a number of occasions. The last of those occasions was 27 June 1983 when leave to enter was given for six months. On 11 June 1984, the Indian Workers' Association applied on behalf of the applicant and his family for indefinite leave to remain. It is common ground that the application could not be supported by reference to any immigration rule. The application relied upon compassionate circumstances, the particular grounds on which the application was founded begin the mental and physical condition of other members of the family settled here. The application was refused on 30 July 1984 in these terms: "You have applied for indefinite leave to remain in the United Kingdom, but you do not qualify for this under the Immigration Rules. You have also applied for leave to remain in the United Kingdom in order to take employment, but you were admitted as a vistor and were not free to take employment. Against that decision, there was an appeal to an adjudicator. At the hearing of that appeal, the applicant was represented by a Miss Ampoma from the United Kingdom Immigrants' Advisory Service. It appears from the adjudicator's decision of 29 March 1985 that the substantial ground of argument was by reference to compassionate circumstances. The adjudicator records: "At the outset Miss Ampoma in a submission put the appellant's case very fairly when she accepted that he did not qualify for indefinite leave under the Immigration Rules.' The grant of the voucher on 1 August 1976 must have appeared in the narrative because towards the end of his decision, the adjudicator said this: "One can quite appreciate the old father's wish to have his eldest son with him in this country, especially as he had behaved so unselfishly when the family first came here staying in Kenya to pay off the loan. At that time he had apparently been granted an entry permit despite the fact that he was then over age.' The adjudicator dismissed the appeal on the basis that there were no grounds upon which he could make a recommendation that the Secretary of State might wish to reconsider his decision. There was an application for leave to appeal against that decision to the Tribunal. The grounds of appeal were bland. They were: "That the adjudictor's decision was wrong in law and that he should have exercised his discretion in favour of the appellant." That application became before Mr Farmer, the Vice-President of the Appeal Tribunal, and was dismissed without an oral hearing. It is that rejection without an oral hearing which is today impugned. Rule 16(5) of the Immigration Appeals Procedure Rules 1972 provides: "An application for leave to appeal shall be disposed of without a hearing unless the adjudicator or, as the case may be, the Tribunal to whom the application is made considers that special circumstances render a hearing desirable." (Now replaced by rule 16(6) in identical terms by the Immigration Appeals (Procedure) Rules, 1984) Mr Nathan, for the applicant, seeks to flaw that that decision upon the basis that there are here special circumstances or, alternatively, as I understand it, that there is bedded in the material which was available to Mr Farmer an arguable point. The arguable pont is that the grant of the voucher on 1 August 1976 gave rise either to an estoppel as against the Crown or gave rise to a legitimate expectation that entry clearance would be granted, that is to say, granted as a matter of discretion outside the rules because this applicant has at no time been within the rules. I cannot detect an arguable point bedded in the material. There was, as Mr Jay has submitted from the Tribunal, no point to be taken. It is possible -- I say no more than possible because it is only of academic interest -- that there might have been a point to be taken had there been an appeal against the refusal of 11 Janaury 1979, but there was not. The fact of the matter is that the voucher was of limited duration. There is no evidence of any representation being made to this applicant that it would be renewed at any time. The applicant knew that the voucher was limited in duration hence the application which gave rise to the decision of 11 Janaury 1979. Thus there is no point. In my view, the Vice-President was right in detecting, as he must have done, no special circumstance and in dismissing the appliction for leave on the papers. There remains one further point which Mr Nathan took and it was this. The applicant has deposed in his affidavit in support of the present application: "At the hearing before the Adjudicator the United Kingdom Advisory Service representative accepted that I did not qualify for indefinite leave under the Immigration Rules." Her acceptance was undoubtedly correct. The affidavit continues: "It was unfortunate that I was not aware at the time that I could have been legally represented as the hearing. Had it been made clear to me at the refusal notice that I could have sought independent legal advice then I would have had professional representation.' The reference to the refusal notice is a reference to the common form of refusal which contains this passage: " . . . United Kingdom Immigrants Advisory Service, a voluntary organisation independent of the Government, will advise you, if you wish, about the decision which has been taken against you and on whether to exercise your right of appeal. If you decide to appeal, the Service can also help you to prepare your appeal and to present it to the appellate authorities. These services are provided free of charge." It is true that there is no express reference to representation by another, be it friend, relative or legal representative, but I would not consture that rubric as indicating by implication that the UKIAS is the only form of representation which can be employed. However, even if I did, I would, as a matter of discretion, refuse leave on this ground. I cannot see that legal representation before the learned adjudictor would have made any difference whatsoever. For the reasons that I give, I dismiss this application and I wish to make it quite plain to those present in court that I am not exercising any appellate function or expressing any view upon the merits of the Fernandez family's claim.

DISPOSITION:

Application dismissed

SOLICITORS:

Birdy & Co, London NW3; Treasury Solicitor