Secretary of State for the Home Department v. Stillwaggon
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 18 December 1974 |
| Citation / Document Symbol | [1975] Imm AR 132 |
| Type of Decision | TH/2529/74(392) |
| Cite as | Secretary of State for the Home Department v. Stillwaggon, [1975] Imm AR 132, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 18 December 1974, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b69c10.html [accessed 4 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v STILLWAGGON, TH/2529/74(392)
Immigration Appeal Tribunal
[1975] Imm AR 132
Hearing Date: 18 December 1974
18 December 1974
Index Terms:
Employment -- Visitor from Commonwealth admitted on a condition prohibiting employment or engagement in any profession -- Application for variation as singer -- Long-term recording contract to be performed and public appearances as singer anticipated -- Refusal of application without reference to Department of Employment -- Meaning of ward 'normally' -- Circumstances in which application should exceptionally be referred to Department of Employment -- Whether singer in category of entertainer requiring work permit -- Whether singer (alternatively) a self-employed person in category of 'artist' -- HC 80, para 5 -- HC 79 para 36.
Self-employed person -- Artists and writers -- Singer with long-term recording contract and planning public appearances -- Whether singer an 'artist' under the relevant immigration rule -- Whether an 'entertainer' requiring a work permit -- HC 79, para 36.
Held:
Mrs S, a citizen of India, was admitted to the United Kingdom as a visitor on condition that she did not enter employment or engage in any business or profession. Through a record company ('the company') application was made to the Secretary of State for a work permit to enable her to fulfil a long-term recording contract, and it was envisaged she would also make public appearances with English supporting musicians. Mrs S was described by the company as a singer of unique and extraordinary talent. The application was refused by the Secretary of State under para 5 of HC 80 n1 without reference being made to the Department of Employment. n1 Paragraph 5 of HC 80 is set out on p 136, post. The adjudicator to whom Mrs S appealed allowed her appeal on the ground that her application merited special treatment under para 5 of HC 80 and should have been referred to the Department of Employment. In the course of the hearing Mrs S was described by a witness as a singer of jazz orientated pop music, and it was suggested that her application should have been made under para 36 of HC 79 in the category of self-employed 'artist' n2. n2 Paragraph 36 of HC 79 is set out on p 136, post. On appeal to the Tribunal by the Secretary of State, Held, (allowing the appeal): (i) Mrs S on the evidence came into the category 'entertainers' for whom a work permit from the Department of Employment was necessary; (ii) to warrant a reference to the Department of Employment (under para 5 of HC 80) on an application to enter employment by a person admitted for a temporary purpose with a condition prohibiting employment, there must be exceptional circumstances, such as strong personal and compassionate reasons, or reasons involving an aspect of vital public interest; the Tribunal did not find such abnormal circumstances to justify a reference in Mrs S's case; (Definition of the word 'normally' in para 5 of HC 80 as meaning 'in the normal way or usually', given by the Tribunal in Tally v Secretary of State for Home Department, TH/2173/74(352) reported at [1975] Imm A R 83 reaffirmed.) (iii) in the opening phrase of para 36 of HC 79 -- 'Self-employed persons, such as artists and writers' -- the word 'artists' was a reference to persons in the category of painter or sculptor rather than to singers, and Mrs S had not brought herself within the provisions of that paragraph.Counsel:
R. W. B. Hurley for the appellant Secretary of State. PANEL: Sir Derek Hilton (President), L. W. Chapman Esq, Sir Gordon Whitteridge.Judgment One:
THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr E. J. T. Housden) allowing the appeal of the respondent Mrs Asha Puthli Stillwaggon against the refusal to vary her leave to enter to enable her to take employment in this country. Mrs Stillwaggon was not present or represented but we had before us a letter dated 12 December 1974 from her solicitors, Messrs Bernard Sheridan & Co, making written representations on her behalf. The respondent, a citizen of India, was admitted to this country on 9 August 1973 as a visitor until 6 October 1973 on condition that she did not enter employment paid or unpaid and did not engage in any business or profession. On 6 September 1973 CBS Records made an application on behalf of the respondent for an extension of stay in the following terms: -- "The above has entered into a long term recording contract with CBS (U.K.) Limited trading as CBS Records. She has been in and out of the U.K. over the past few years and is at present residing in the U.K. on a visitor's visa which expires on 6 October 1973. The young lady is a singer of unique and extraordinary talent and our contract arrangement is that she will provide us with a minimum of two long-playing records in each contract year. The first of five contract years ends on 31 May 1974. Mrs Stillwaggon will be using a considerable number of English musicians and it is also envisaged that she will be making public appearances, again providing work for a considerable number of English backing musicians. As yet no future recording dates have been set nor have any firm bookings in respect of public appearances been made. However, I would be grateful if you would grant to Mrs Stillwaggon a work permit for the initial period of six months to enable her to perform her contract with us. I enclose her passport and American Green Card for your inspection. I feel sure that in this case, neither the Musicians Union nor any other body will have any objection to Mrs Puthli Stillwaggon singing for this country. As far as taking away work from English musicians is concerned, she will be in fact, providing them with opportunities for more work. Naturally I will be pleased to supply any further details that you may need with regard to her recording contract with us, and if necessary, I will provide figures to substantiate my assurance that her income will be sufficient to maintain her. I look forward to hearing from you in the near future." The application was refused on 29 January 1974 on the grounds that Mrs Stillwaggon was admitted as a visitor and her stay was made subject to a condition prohibiting employment. Mrs Stillwaggon appealed against that decision and, after hearing evidence from the head of Artists and Repertoire at CBS Records (Mr P. J. Bailey), the adjudicator allowed the appeal. For the reasons he gave he found that Mrs Stillwaggon was not an employee. After hearing submissions that she was a self-employed person the adjudicator said in his determination: -- "As to the argument that the Secretary of State ought to have considered this application under para 36 of HC 79, the fact remains that he did not. n3 I have seen no evidence that any thought of para 36 ever passed through the mind of the Secretary of state or of his officers when this application was considered, nor do I think that the terms of Mr Bailey's letter of 6 September 1973 are such that the Secretary of State ought to have realised that Mrs Stillwaggon could have been considered under that rule. Obviously Mr Bailey made a mistake in applying for a work permit, when an application under para 36 would have been better; but, as has been said by the Immigration Appeals Tribunal, the onus is on the applicant to state clearly what it is he wants. n3 Paragraph 36 of HC 79 is set out on p 136, post. The Secretary of State did not consider this application as one for permission to remain here as a self-employed person under para 36 of HC 79; he did not take any decision about that aspect of the application, and thus I cannot say that his decision was not in accordance with the law and immigration rules, or that he ought to have exercised his discretion differently in that regard." It was also submitted to the adjudicator that the application of the respondent was not a normal one within the meaning of para 5 of HC 80 and should have been referred to the Department of Employment. n4 The adjudicator, after considering the appeal of Salwa (TH/4561/73) allowed by another adjudicator, Mr W. Phillips, concluded his determination that: -- n4 Paragraph 5 of HC 80 is set out on p 136, post. "I see from the case file that the Secretary of State did not appeal in Salwa's case to the Tribunal, despite having been given leave to do so by Mr Phillips. If Miss Salwa's case merited special treatment, and should not have been dealt with in the normal manner, n5 the same consideration applies, a fortiori, to Mrs Stillwaggon, who possesses what I am told is a unique talent. I therefore consider that the Secretary of State ought to have referred her application to the Department of Employment. My decision may appear to be inconsistent with my finding that Mrs Stillwaggon's contract with CBS Records does not make her an employee in the normally accepted legal sense, but I have already said that the Department of Employment may well have its own definition of 'employment' and may indeed come to the conclusion that Mrs Stillwaggon requires a work permit. There is evidence to that effect in the Department's letter of 14 December 1973. n5 In Salwa's case the appellant possessed the special skill of being able to type in Arabic, a skill which was required by her potential employer. For the reasons which I have given I considered that the decision of the Secretary of State was not in accordance with the law and immigration rules applicable to this case. I therefore allowed this appeal." The Tribunal granted leave to appeal on the following grounds: -- "The adjudicator erred: -- First, in concluding that the applicant's talent is 'unique' or significantly greater than that possessed by many others in entertainment and other fields who have entered, or might seek entry, as visitors and then seek to remain in employment. Secondly, in concluding that because of her talent the applicant should not be treated under the provisions in para 5 of HC 80 'normally' applied to visitors who enter subject to a condition prohibiting them taking employment but who seek to remain in employment." At the hearing before us Mr Hurley submitted that persons such as the respondent did require work permits and that the normal procedure was to apply before the prospective employee entered the country. A work permit had in fact been applied for in this case after the respondent's arrival. He produced a pamphlet (OW5) issued by the Department of Employment entitled "Employment of Overseas Workers in Great Britain" which stated that 'entertainers' were among the categories of employment for which work permits might be issued. If the Tribunal accepted that a work permit was required in this case it followed that Mrs Stillwaggon could not claim to be a self-employed person within para 36 of HC 79; in Mr Hurley's submission the word 'artist' contained in that paragraph meant a painter and not a singer. Mr Hurley further submitted that para 5 of HC 80 applied to this case. There were no abnormal circumstances warranting a reference to the Department of Employment. Maybe the respondent had a unique voice but that was not an unusual claim by an entertainer and was not enough to justify a departure from the normal practice. There must be exceptional circumstances to justify a reference, for example -- strong personal compassionate circumstances or a case involving an aspect of vital public interest. In their written submissions the respondent's solicitors referred to the adjudicator's determination and to the fresh application made under para 36 of HC 79 on the date of the hearing before the adjudicator which the Home Office had declined to consider pending the appellant's appeal to the Tribunal. The letter concluded as follows: -- "It is clear from the adjudicator's decision that application should never have been made under para 5, and this is another reason why our client is unwilling to fight what is a pure point of principle with the Home Office under that paragraph. Therefore, whereas our client reserves all her rights under that paragraph (in view of the Home Office failure to accept our offer mentioned above), repeats and reiterates the evidence of Mr Bailey and the findings of the adjudicator, our client is anxious that the facts of the matter should be placed before you and the Home Office be reprimanded or directed as you think fit in relation to the application already lodged. We shall appreciate a copy of the Tribunal's determination in due course." The refusal to vary the respondent's leave to enter was made under para 5 of HC 80 which reads: --"5. In regard to variation of leave to enter with a view to employment, the general position is that where a person wishes to come to work in the United Kingdom the employer must have obtained a work permit before the person sets out; and people admitted as visitors or students or for other temporary purposes have under these rules no claim to stay here in employment. Applications for this purpose by people who were admitted subject to a condition prohibiting employment are normally to be refused, without reference to the Department of Employment. In cases where no such condition was imposed, if that Department is prepared in the particular case to approve the proposed employment, an appropriate extension of stay may be granted; if not, an extension should be refused."
In argument before the adjudicator it was submitted that as Mrs Stillwaggon was self-employed the application should have been under the provisions of para 36 of HC 79 which states: --"36. Self-employed persons, such as artists and writers, may be admitted if the Immigraion Officer is satisfied that they do not intend to do work for which a work permit is necessary and that they will be able to support themselves and any dependants without recourse to public funds. Where such a passenger has obtained prior consent and produces a current entry clearance issued for this purpose, he may be admitted for an initial period of up to 12 months subject to a condition restricting his freedom to take employment. In other cases the Immigration Officer may admit him for a period of up to 2 months and advise him to make further application to the Home Office."
According to the evidence Mrs Stillwaggon was admitted to this country for a two month visit on condition that she did not enter employment or engage in any profession or business. Within a month of her arrival, an application was made on her behalf for permission to stay in order to carry out the terms of a recording contract as a singer, and the letter of application stated that it was also envisaged that she would be making public appearances. Department of Employment pamphlet OW5 states that work permits are necessary for (inter alios) entertainers, and it seems to us clear from the evidence that the respondent is within such category, whatever her contractual relationship with CBS Records may be. We accept the submission made by Mr Hurley that the word 'artist' in para 36 of HC 79 refers to a person in the category of a painter or sculptor rather than to a singer and that the respondent qua singer had not brought herself within the provisions of that paragraph. n6 n6 The sole witness before the adjudicator, a representative of CBS Records, described Mrs Stillwaggon as a singer of jazz orientated pop music. We note the complaint by Mrs Stillwaggon's representatives that the Home Office declined to consider her fresh application but in our view such action was proper pending the outcome of the Secretary of State's appeal to the Tribunal. It was argued before the adjudicator that this was not a normal case within the meaning of para 5 of HC 80 and that the application to vary should have been referred to the Department of Employment. In the appeal of S. E. Tally n7 the Tribunal expressed the opinion that 'normally' means 'in the normal way or usually'. We agree with that view, and we accept the submission made to us that to warrant the reference to the Department of Employment of an application by a person prohibited from taking employment there must be exceptional circumstances, such as strong personal and compassionate reasons or reasons involving an aspect of vital public interest. In this case we do not find that there were any abnormal circumstances justifying a reference and we consider that the decision was in accordance with the law and the immigration rules applicable and that discretion should not have been exercised differently. For these reasons we allowed the appeal. n7 Tally v The Secretary of State for the Home Department, TH/2173/74(352), is reported at [1975] Imm A R 83.DISPOSITION:
Appeal allowed.SOLICITORS:
Bernard Sheridan & Co.Copyright notice: Crown Copyright
