Frousoulla Stavrou Christodoulidou v. Secretary of State for the Home Department

FROUSOULLA STAVROU CHRISTODOULIDOU v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1985] Imm AR 179

Hearing Date: 18 September 1985

18 September 1985

Index Terms:

Certificate of entitlement to right of abode in the United Kingdom -- whether errors in entries in a passport earlier issued to the applicant can be relied on to claim a right of abode -- whether the Secretary of State is estopped from subsequently considering the application on the basis of the true facts. Immigration Act 1971 (as amended) s 3(9).

Held:

The facts are set out in the determination. Held: 1) The right of abode is a statutory right which an applicant either has or has not depending upon whether the applicant satisfies the statutory conditions. It cannot be acquired by the exercise of a discretion. 2) It followed that if an applicant did not satisfy the statutory requirements an applicant could not acuqire that right even if it were erroneously acknowledged at some time that it attached to the applicant. 3) Because neither the Secretary of State nor an immigration officer had power to confer the right of abode on an individual who did not satisfy the statutory conditions, no question of estoppel could arise.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Ram [1979] 1 All ER 687. Rubab M Gowa and ors v The Attorney General (CA 20 December 1984) unreported

Counsel:

E Cotran for the appellant; R Parsons for the respondent. PANEL: DL Neve Esq (President) BL Shibko Esq, BJS Edmonds Esq

Judgment One:

THE TRIBUNAL: The appellant is a British Overseas citizen who appeals to the Tribunal against the determination of an adjudicator (Mr W Phillips) dismissing her appeal agianst the refusal of the Secretary of State dated 15 May 1984 to grant her a certificate of entitlement to the right of abode in this country. There is little dispute as to the facts of this case. The appellant was born in the Sudan in 1931. She married a Greek Cypriot gentleman who was working in Ghana, and lived with him in Ghana and Nigeria. Since 1975 she has travelled regularly to this country where her children have been educated and has spent substantial time in the United Kingdom. She has always travelled on a United Kingdom passport. She and her husband are the owners of a substantial house in Croydon. Originally she travelled on a "C" passport, issued on Lagos, in which the inscription "Holder has the right of abode in the United Kingdom" was deleted, and the amendment was entered "Holder is subject to control under the Immigration Act 1971". In 1982 all the pages on this passport had been fully used up and it therefore became necessary for her to obtain a new passport. She went with her eldest son to the Passport Office and he filled in an application for a new passport. This was issued on 12 September 1982 and has been produced. When the appellant's son collected it he noticed that the inscription "Holder has a right of abode in the United Kingdom" had not been crossed out, but underneath this inscription there appeared the entry "Holder previously tavelled on passport No C979286 Lagos dated 1977 attached hereto which shows that she was granted leave to remain in the United Kingdom for a stay of two months on 18 July 1982". The son's evidence to the adjudicator (which has not been challenged) is recorded as follows regarding this matter: "I noted that the absence of deletion of right of abode was inconsistent with what was written below. Lady went back and came out and told me that what it said was correct". After this passport had been issued the appellant travelled in and out of this country three or four times on the passport, but on these occasions it was not stamped because it appeared from the passport that the appellant was entitled to the right of abode in this country. In 1984 however the appellant's other son applied for indefinite leave to remain in this country, in consequence of which the Home Office asked for the appellant's passport, which she sent to them. When it was returned to her the inscription "Holder has the right of abode in the United Kingdom" had been deleted and it had been endorsed "The holder is subject to control under the Immigration Act 1971". A further entry in the passport stated that she had been granted permission to remain in the country for two months. On 30 April 1984 application was made to the Home Office for a certificate of entitlement to the right of abode in this country. The application was considered, but the Home Office came to the conclusion that she was not entitled to such a certificate and refused her application on 15 May 1984. When the appeal went before Mr Phillips it was argued tha the appellant had -- albeit mistakenly -- been granted the right of abode when her new passport was issued, because the Passport Office had authority to issue the passport and there had been no misrepresentation or fraud. The case of Ram [1979] 1 All ER 187 was cited in support of this submission. The adjudicator concluded his determination in this way: "In this case Mrs Bird relied upon the judgments of the Divisional Court in the case of Ram [1979] 1 All ER 687 which is referred to in the Tribunal determination in the case of Qazi (2513) dated 19 December 1982. The judgments in Ram are relied upon as authority for the proposition that when indefinite leave is granted by mistake, in the absence of fraud or dishonesty on the part of the applicant, it could not be said that the Immigration Officer had no authority to grant it. It has not been asserted by the respondent in this present fase that there has been any dishonesty on the part of the applicant but I cannot say that I am satisfied that the appellant, or her son acting for her, was wholly without blame. It seems that the appellant's son, Mr CS Christodoulidou, completed a form of application for British citizenship in the Pasport Office and he "thought that he must have" put the United Kingdom as the appellant's country of residence. In fact, her country of residence was Nigeria and appeared as such in both the passports issued to her and reproduced as annexures to the explanatory statement. The appellant's son said that he drew the attention of the clerk at the Passport Office to the seemingly contradictory endorsements in the passport issued to the appellant in 1982. I do not thing that the fact that the error would have been detected by the exercise of reasonable care in the Passport Office serves to bring the appellant within the ambit of the proposition in Ram. It seems likely, to my mind, that the error in the Passport Office was induced by an incorrect statement made on the appellant's behalf. The error, in any event, was of a quite different nature from that of an immigration officer granting indefinite leave by mistake . . . In my opinion, on the facts of this particular case, the respondent's decision was in accordance with the law and Immigration Rules and his discretion should not have been exercised differently and I accordinly dismiss this appeal." At the appeal before us Mr Cotran first took issue with the following remarks of the adjudicator relating to questions of fact "I cannot say that I am satisfied that he appellant, or her son acting for her, was wholly without blame . . . It seems likely, to my mind, that he error in the Passport Office was induced by an incorrect statement made on the appellant's behalf". It is convenient to dispose of this matter straight away. The only evidence about what happened at the Passport Office when the appellant's son made application for a fresh passport for his mother (not an application for British citizenship as mentioned by the adjudicator) was the evidence given by the son before the adjudicator, the relevant portion of which we have already quoted. We therefore find that the adjudicator's finding in this respect was contrary to the evidence before him. So far from there having been any misrepresentation the attention of the person issuing the passport had been specifically drawn to the mistake and no action as a result. Not only was no action taken as a result, but the appellant's son was assured that the passport was in order. Mr Cotran pointed out that the appellant's application was of great importance to her in view of Section 3(9) of the Immigration Act 1971, as amended by Section 39(3) of the British Nationality Act 1981. The amended subsection reads: "(9) A person within this subsection seeking to enter the United Kingdom and claiming to have the right of abode there shall prove that he has that right by means of such certificate of entitlement as may be specified in the immigration rules, unless (a) he claims to be a British citizen and produces (or is present when there is produced) a United Kingdom passport describing him as such a citizen or a United Kingdom passport describing him as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom." Mr Cotran stated that he relied upon the case of Ram and also the case of Gowa, heard by the Court of Appeal on 20 December 1984. The case of Ram concerned a man who was mistakenly given indefinite leave to remain in this country by an immigration officer when he was not in fact entitled to it. There had not been any fraud or misrepresentation on his part. The Court of Appeal held that in granting Ram indefinite leave to remain in this country the immigration officer had acted within his authority, albeit mistakenly, and thus Ram was not an illegal entrant. Mr Cotran submitted that in this case the officer in the Passport Office who had issued the passport had acted within his authority, there had been no deception, and consequently the right to abode had been conferred upon the appellant. If the Tribunal were against him on this point then Mr Cotran submitted that on the basis of the majority judgment in the case of Gowa the Secretary of State was estopped from denying the appellant the right of abode in this country. The Gowa case concerned the application by children in Tanzania for registration as citizens of the United Kingdom and Colonies. In 1951 they were assured by the appropriate government official in Tanzania that they were already citizens of the United Kingdom and Colonies. When they applied for regiatration as such in 1979 however they were told that this had been a mistake, and their application was refused. By a majority the Court of Appeal held that the Corwn was estopped by the information given to them in 1951 from denying them the citizenship which they sought. Mr Cotran submits that similarly the Secretary of State is estopped in this case from denying the appellant the right of abode of which she had been assured in 1982. In reply Mr Parsons conceded that the adjudicator had made the mistake of fact complained of, but submitted that he had reached the right result, albeit for the wrong reasons. In his submission the cases of Ram and Gowa could be -- and should be -- distinguished from the instant case because ineach of those cases the government official conferring the right which was subsequently denied the applicants had the auuthority so to confer it. In the case of Ram this was indefinite leave to remain in this country (which the immigration officer had authority to grant), and in the Gowa case it was citizenship fo the United Kingdom and Colonies (which the Member for Law and Order in the secretariat of the Government had authority on behalf of the Governor to grant). In the instant case however what was sought was the right of abode in this country, formerly called patriality. The right of abode in this country or patriality was nto something which could be conferred, it was something which a person either was or was not entitled to, under the provisions of the Immigration Act 1971 and the British Nationality Act 1981. It was not a matter over which any official or indeed Minister had any discretion. After the appellant had made her application she had been invited to make out a case that she was entitled to the right of abode and had failed to do so. We have considered these submissions and the authorities quoted. We agree with Mr Parsons' submissions that the cases of Ram and Gowa can be and should be distinguished from this case. It has never been part of the appellant's case that she is entitled to the right of abode, but simply that because she has been "granted" it she should not now be denied it. In our view, since she did not fulfil the conditions required to make her eligible for the right of abode in this country, the Secretary of State could not properly have granted her application. For all that, we consider that the appellant can understandably feel hard done by and experience a feeling of injustice. She and her husband have now considerable investments in this country where their children have been educated. With these matters in mind, although the appeal must be dismissed for the reasons we have given, we recommend that, should the appellant make application for a fresh pasport, she should be issued with one without the deletion which has been the cause of all the trouble in this case.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Tilbury Goddard & Co, Thornton Heath.