R v. Immigration Appeal Tribunal, Ex parte Majid

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE MAJID

Queen's Bench Division

[1988] IMM AR 315

Hearing Date: 5 February 1988

5 February 1988

Index Terms:

Variation of leave -- application -- new application on different basis before decision on first application -- whether first application was properly treated as having lapsed -- the consequence of an application that lapses for extension of leave under the Variation of Leave Order. Immigration (Variation of Leave) Order, 1976, ss 3(1), 3(2)(c).

Held:

The applicant for judicial review was a citizen of Pakistan. He was admitted to the United Kingdom on 15 September 1983 as a visitor for one month. On 11 October 1983 he applied for an extension of leave as a visitor. On 3 November 1983 he married. On 16 December 1983 he applied for indefinite leave on the basis of that marriage. The Secretary of State had not, by that date, given a decision on the first application (of 11 October 1983). The Secretary of State treated that first application as superseded by the application for indefinite leave and considered it had lapsed. The application for indefinite leave was refused on 6 June 1984. The applicant did not appeal, nor did he leave the country. The Secretary of State initiated deportation proceedings against him as an overstayer. He appealed. The adjudicator refused to treat the appeal as one against the decision of 6 June 1984 as well as against the decision to deport, albeit he appears to have taken the applicant's marriage into account. The appeal was dismissed and leave to appeal to the Tribunal refused. On application for judicial review counsel argued that the adjudicator's decision was flawed in the light of Hoque and Singh. He argued that the applicant's application for an extension of leave as a visitor (of 11 October 1983) was still outstanding: it had not lapsed. The applicant was still entitled to appeal against the refusal of indefinite leave (on 6 June 1984) if given leave to make a late appeal. Held: 1. On the substantive issues on the appeal against deportation, neither the adjudicator's determination nor the refusal of leave to appeal to the Tribunal could be held to be unreasonable on Wednesbury principles. 2. The Secretary of State was entitled to treat the application for extension of leave as a visitor as lapsed, and superseded by the subsequent application for indefinite leave. Thus the applicant could not claim that his leave was maintained by that applicantion being still undecided. 3. Obiter, under the provisions of the Variation of Leave Order, when that application lapsed, the applicant's leave expired twenty-eight days afterwards. Semble if that were not so, it expired twenty-eight days after the refusal of indefinite leave on 6 June 1984.

Cases referred to in the Judgment:

Immigration Appeal Tribunal v Hoque and Singh CA [1988] Imm AR 216.

Counsel:

G Yazdani for the appellant; D Pannick for the respondent PANEL: McCullough J

Judgment One:

MCCULLOUGH J: This is an application for judicial review of three decisions, the first of which was taken by the Secretary of State, the second by an adjudicator, and the third by the Immigration Appeal Tribunal. It is made by Azhar Majid, who was born in Pakistan in 1956. He came to the United Kingdom on 15 September 1983 and was given permission to visit for one month, ie until 15 October 1983. On 11 October 1983 he applied for permission to remain for longer as a visitor. His application brought into operation paragraph 3(1) of the Immigration (Variation of Leave) Order 1976, which extended the duration of his permission until 28 days after the date of the decision on his application. On 5 November 1983 he married a lady who was already settled here; she was some two years younger. On 22 November 1983 the Home Office, not yet knowing of his marriage, asked for certain evidence in support of his application of 11 October 1983. No reply was received. On 16 December 1983 an application was made on his behalf for leave to remain indefinitely on the basis of his marriage. This application was treated by the Secretary of State as distinct from and as having superseded that of 11 October 1983. If it was right so to treat it, then because of paragraph 3(2)(c) of the 1976 Order, the duration of his permission would not have been further extended by this later application. Further, because his application of 11 October 1983 had lapsed, the extension which he had gained by the operation of the 1976 Order would, as it seems to me, have come to an end at any rate twenty-eight days after the lapse of his application on 16 December 1983. However, there is no need to decide whether this would have been so. On 6 June 1984 the Secretary of State refused him leave to remain indefinitely. He was not satisfied that the primary purpose of the marriage was not to obtain settlement in this country. The notice informing him of his refusal said that he could stay until 4 July 1984. He did not appeal. Nevertheless he remained here. At the end of October 1984 the Secretary of State directed that he leave, but he did not. On 20 May 1985 the Secretary of State gave notice of his intention to make a deportation order. The applicant appealed. His appeal was dismissed by the adjudicator whose determination and reasons are dated 5 June 1986. The adjudicator refused to treat the appeal as one against not only the decision of 20 May 1985 but also the decision of 6 June 1984. However, as will be seen, the applicant was not prejudiced by this. Leave to appeal against the adjudicator's decision was refused by the Immigration Appeal Tribunal on 23 July 1986. Mr Yazdani, in commendably brief and clear submissions, said first that the applicant still has permission to remain, because the application for an extension of his stay as a visitor which he made on 11 October 1983 has never been determined; therefore the extension of permission granted by paragraph 3(1) still runs. The learned adjudicator rejected this argument, being of the view that the Secretary of State was reasonable in treating the application of 11 October 1983 as having been superseded by that of 16 December 1983 and having thus lapsed. The applicant had himself told the adjudicator that in December 1983 he had gone to solicitors and asked them to apply on his behalf for indefinite leave on the basis of his marriage; "I was not interested in remaining as a visitor, but I did not know much about the rules of this country." The Immigration Appeal Tribunal said that his opinion was entirely reasonable. I agree. Mr Yazdani submitted that the adjudicator was wrong to say that he was precluded from hearing an appeal against the Secretary of State's decision of 6 June 1984. The applicant had not sought to appeal against it in time, but this was because the solicitors then acting for him (who are not those now acting) failed to tell him of the decision. This could have been treated as a special circumstance and need not have stood in his way. However, the adjudicator was of the opinion that he was precluded from giving leave to appeal because the applicant's permission to remain had expired. During the argument I thought that this criticism of the adjudicator was sound until Mr Pannick reminded me of paragraph 2(c) of Article 3 of the 1976 Order, which prevented the application of 16 December 1983 from further extending the duration of the permission to remain. However, whether the adjudicator was right or wrong, the applicant was not prejudiced by his inability to appeal against the decision of June 1984 because the adjuicator took into account everything known to the Secretary of State before his decision of 20 May 1985. Everything was considered in the same way as it would have been had the two appeals been before him. Mr Yazdani submitted that, had both appeals been heard, other witnesses might have been called before the adjudicator and other evidence given. I cannot see that there would have been any difference, and I am not able to accept this ground of appeal. The adjudicator found, as had the Secretary of State, that the applicant had not established that the primary purpose of his marriage was not to obtain settlement in the United Kingdom. Mr Yazdani submitted that the evidence was insufficient to justify this conclusion. The adjudicator held, as had the Secretary of State, that the applicant's compassionate circumstances did not outsweigh the public interest in deporting him. Again Mr Yazdani submits that the evidence could not justify such a conclusion. These were matters of fact and degree for the adjudicator to balance. I can detect no error in his approach to either question. Mr Yazdani referred to the recent decision of the Court of Appeal in R v Secretary of State for Home Affairs, ex parte Hoque (18 December 1987) and in particular to paragraphs (7) and (8) of the propositions there set out, but there is nothing to suggest that the adjudicator's application of the law contravened either paragraph. Similarly there is nothing to show that he misunderstood or misapplied paragraphs 154 to 158 of HC 169. Finally, Mr Yazdani asserted that the Immigration Appeal Tribunal was wrong to refuse leave to appeal. It could only have given leave if it had thought it arguable that the findings of the adjudicator could not properly be supported by the evidence, or if it involved an arguable point of law. The Tribunal said that there was no argument of either kind open to the appellant, and I agree. Leave to appeal was rightly refused. Mr Yazdani showed me a letter sent to the Home Office in September 1986 asking for this matter to be reconsidered, and the reply of 1 December 1986, in which it was said that the Secretary of State saw no reason to alter the decision. These letters, both being dated after the decisions which are called in question, cannot affect the outcome of this application. None of the grounds is made out, and the application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Hafiz & Co, London; Treasury SolicitorCB2FE4205:

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