Badruddin Dungarwalla and Another v. Secretary of State for the Home Department

Badruddin Dungarwalla and another v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1989] Imm AR 476

Hearing Date: 10 March 1989

10 March 1989

Index Terms:

Certificate of right of abode -- refusal by Secretary of State -- assertion that appellants had not at all material times been ordinarily resident in the United Kingdom -- whether refusal justified -- whether in the events which had happened there had been a unilateral cancellation by the Home Office of an application for variation of leave -- whether in consequence the appellants had not at any time been overstayers. Immigration Act 1971 (unamended) ss 2(1)(c), 14, 33(2).

Held:

The appellants had first arrived in the United Kingdom in 1974. In 1979 application was made for a further extension of their leave, the then current period expiring early in that year. Before that application had been considered, the solicitors acting for the appellants wrote asking for the return of their passports, because the appellants wished to travel abroad. In reply the passports were returned with a stock letter which indicated that, that "request has been taken as superseding and therefore cancelling the previous application . . . " The appellants did not however travel abroad. Their leave had been extended to 12 April 1979: not until 21 November 1979 did their solicitors, by applying for further leave, seek to regularise the appellants' position. The Secretary of State therefore concluded that from 12 April 1979 to January 1980 the appellants were not in the United Kingdom with leave, and thus not ordinarily resident. On their behalf it was argued that the Home Office had no power unilaterally to cancel an application for variation of leave: it followed that from April 1979 the appellants had an outstanding application and were not overstayers. Held 1. The Home Office had no general power unilaterally to cancel an application for variation of leave. 2. However, on the facts, the application had been treated as cancelled because the subsequent application indicated that events would occur that would automatically have led to the appellants' leave lapsing. 3. Moreover the Home Office letter now attacked had been accepted by the solicitors without protest, and no further application made until some months later.4. In the events which had happened, the Secretary of State's approach, and that of the adjudicator were correct.

Cases referred to in the Judgment:

Adetutu Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135.

Counsel:

G Warr for the appellants; A Gammons for the respondent PANEL: DL Neve Esq (President), Miss PG Liverman JP, Mrs JHM Goodchild

Judgment One:

THE TRIBUNAL: The appellants, who were at the time of the decision the subject of this appeal citizens of the United Kingdom and Colonies, appealed to the Tribunal against the determination of an adjudicator (Mr AF Hatt) dismissing their appeal to him against the Secretary of State's refusal to grant them a certificate of the right of abode in this country. We reserved our determination and the parties agreed to postal delivery of it. The facts of this case are not in dispute. The appellants arrived in this country on 4 September 1974: with one temporary absence they have remained here ever since, applications for extensions of their permitted stay having been granted. However in 1979 events took place which have caused confusion and given rise to this appeal. On 14 February 1979 the appellants' solicitors wrote a letter in these terms: "We refer to previous correspondence in this matter. Our above Clients now wish to apply for a further extension of their period of stay in this Country and if possible to arrange for the removal of the conditions restricting their freedom to take employment. We enclose herewith our Clients' British Passports numbers 864351A and 864352A respectively. We should be grateful if you could send us a card or letter to acknowledge our letter and it enclosures and confirming that the matter is receiving attention." The Home Office acknowledged receipt of this letter and the passports on 1 March 1979. On 6 March 1979 the appellants' solicitors wrote in these terms: "Thank you for your letters of the 1 March. Our Clients do not wish to attend at Lunar House unless they are assured that the passports are ready for collection. Our Clients wish to travel in the near future and we shall be grateful therefore if passports can be made up as a matter of urgency and returned to us please." This brought forth a reply dated 15 March 1979, in the form of what we are informed is a stock letter, reading as folows: "I refer to the request made for the return of Mr and Mrs Dungarwalla's passports to enable them to leave the United Kingdom. This request has been taken as superseding and therefore cancelling the previous application for leave to remain, or for variation of conditions. I would draw your attention to the most recent endorsement in the passport(s), which is/are returned herewith." As things turned out neither of the appellants actually did leave this country, and on 21 November 1979 the appellants' solicitors applied for the revocation of the conditions attached to their permission to be here, in consequence of which they were granted indefinite leave to remain on 31 January 1980. On 10 April 1986 the first appellant wrote to the Home Office applying for a certificate of the right of abode in this country. This application was refused on 25 June 1986, the notice of refusal being couched in these terms: "You have applied for the right of abode endorsement under section 2(1)(c) of the Immigration Act 1971 as in force before 1 January 1983, on the grounds that you were before that date a citizen of the United Kingdom and Colonies who was settled in the United Kingdom and had at that time and while such a citizen been ordinarily resident here for 5 years. However section 33(2) of the Immigration Act 1971 provides that a person is not to be treated as ordinarily resident in the United Kingdom for this purpose when he was here in breach of the immigration laws and you were in breach of your conditions from 12 April 1979 to 31 January 1980 when your stay was regularised. The Secretary of State is not therefore, satisfied that you have been ordinarily resident in the United Kingdom for the required period. The Secretary of State therefore refuses your application." Section 2(1)(c) of the Immigration Act 1971, before it was subsequently amended, and as it was in force until 1 January 1983, provided that "A person is under this Act to have the right of abode in this country if he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more": section 33(2) of the Act states that a person is not to be treated as ordinarily resident in the United Kingdom at a time when he is there in breach of the immigration laws. It is the Home Office case that when the appellants' passports were returned to them wtih the letter of 15 March 1979 set out above, their earlier application of 14 February, also set out above, had been superseded and they had only been granted leave to remain in the country until 12 April 1979. Thus from 12 April 1979 until 30 January 1980, when they had been granted indefinite leave to remain, they had been in this country without authority and hence in breach of the immigration laws. Under section 33(2) they had not therefore been ordinarily resident here and could not claim the benefit of section 2(1)(c). The appellants' contention in answer to this is as follows. By their solicitors' letter of 14 February 1979 the appellants had applied for a further extension of their period of stay and for the removal of the conditions restricting their freedom to take employment. This application had never been refused or allowed, and it is their submission that the Home Office were not entitled to regard the request for the return of their passports as "superseding and therefore cancelling the previous application". Whilst they had an application pending they could not be legally removed, and consequently they had not been here in breach of the immigration laws and could -- and should -- have been regarded as ordinarily resident here. They thus qualify for the right of abode in this country. The adjudicator carefully considered the arguments and facts before him and records: "I agree with Mr Warr's proposition that the Home Office cannot properly cancel unilaterally, a persons application for an extension of stay. However, is this really what happened in this case? I think not. The appellants, through their solicitors, made an application to the Home Office on 14 February 1979 for a further extension of their period of stay and "if possible to arrange for the removal of the conditions restricting their freedom to take employment". On 6 March 1979 the appellants solicitors wrote to the Home Office stating: "Our clients wish to travel in the near future and we shall be grateful therefore if passports can be made up as a matter of urgency and returned to us please". There was no indication that the proposed leaving the UK was on a temporary basis only or that the appellants application of 14 February 1979 should still be regarded as pending. The Home Office duly returned the appellants passports with a printed form of letter dated 15 March 1979 which stated that the passports were being returned to enable the appellants to leave the United Kingdom. The letter then stated that the request had been taken as superseding and therefore cancelling, the previous application for lease to remain, or for variation of conditions. The appellants were then granted leave to remain until 12 April 1979 and furthermore, what I consider most important, is the fact that the appellants attention was specially drawn to the most recent endorsement on the appellants passports, ie that their leave to remain expired on 12 April 1979. I therefore find that the appellants and their solicitors had ample time to challenge the stated cancellation by the Home Office of the previous application, particularly, as attention was drawn to the fact that leave to remain expired on 12 April 1979. In fact, no action was taken by the appellants or their solicitors until some 9 months later. The appellants must have been well aware that their leave to remain expired in April and that they were remaining in the UK in breach of the Immigration Laws. Accordingly, I can find nothing unconscionable in the Home Office letter dated 15 March 1979." He then goes on to deal with a submission by Mr Warr relating to estoppel and finds no merit in it. Mr Warr has not sought to rely on the estoppel point before us and we do not need to consider it. The adjudicator went on to dismiss the appeal. Upon the appeal coming before us Mr Warr has repeated the submission that it is not open to the Home Office unilaterally to cancel an application. The Home Office letter of 15 March purporting to do so is a printed form which, in Mr Warr's submission, the Home Office use far too freely. Mr Warr points out that if the purported cancellation is to be regarded as valid it would have the effect of depriving the appellants of their right of appeal under section 14 of the Immigration Act. This clearly cannot be right. He also drew our attention to the case of Oloniluyi [1989] Imm AR 315. This case concerned the construction of section 3(3)(b) of the Immigration Act and dealt with the question of whether the conditions attached to a person's leave to this country should be re-imposed on their return after a temporary absence. Mr Warr draws our attention to the following passage in the judgment of the Master of the Rolls: " . . . the relevant circumstances clearly included the fact that, when the applicant left this country for her Christmas holiday, she had an outstanding application for an extension of her leave to remain which was nearly a year old and which, if refused, would have given her a section 14 right of appeal. They also included the fact that the applicant's passport had been stamped "visa exempt" and with the section 3(3)(b) endorsement which would clearly indicate to the average visitor that there should be no problem in re-entering this country for the balance of the existing period of leave, even without account being taken of what the official at Lunar House is alleged to have said. In particular, the section 3(3)(b) endorsement clearly contemplates that subsequent leave is likely. None of those circumstances appear to have been taken into account." Mr Warr also submitted that the letter of 15 March referred to the cancellation of "the previous application for leave to remain, or for variation of conditions". Mr Warr submits that the application in question was not for the variation of conditions but for their removal. In this respect also the letter was inapposite. Mr Gammons in reply submitted that the case of Oloniluyi was distinguishable, in that it involved the question of the exercise of discretion and the question of a legitimate expectation. In his submission there was no discretion involved in this case and no legitimate expectation: either one was here without authority or one was not, and no question of discretion or the merits of the case arose. The Home Office had been informed by the appellants' solicitors that they were going to leave this country, and their leave to be here had been extended by the Home Office until 12 April in order to enable them to do so. Had they done what they had said they were going to do -- ie leave this country -- their application would automatically have lapsed, because they would have needed a fresh leave to enter on return. We have considered the submissions. Whilst -- like the adjudicator -- we agree that the Home Office have no general power unilaterally to cancel a person's application for an extension of stay, one has to consider the particular circumstances in which this decision has come about. In this case we consider that the Home Office were entitled to rely on the letter from the appellants' solicitors dated 6 March 1979 in which they stated "Our Clients wish to travel in the near future and we shall be grateful therefore if passports can be made up as a matter of urgency and returned to us please". If they had done so, their leave to be in this country would inevitably have lapsed and, in our view, in these circumstances the Home Office was entitled to regard the application for the variation of such leave to have been superseded by the appellants' statement of their intentions. We are reinforced in this view by the fact that the Home Office letter of 15 March appears to have been accepted by the appellants' solicitors without protest, and that it was not until 21 November (9 months later) that any further application was made, when the appellants' solicitors stated: "Further to our previous correspondence, on behalf of our above mentioned Clients, Mr Dungarwalla wishes to apply for a further 12 months extension on business grounds and also one years extension for his wife. It may be, however, that you would now agree to the revocation of the conditions of stay as they have completed four years here on business and perhaps you would confirm this please." We therefore agree with both the Secretary of State and the adjudicator that the appellants' presence here from 12 April 1979 to 31 January 1980 was in breach of the immigration law. The appeal is therefore dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Tilbury Goddard, Thornton Heath for the appellants

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