Shah, (SDL) v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 17 February 1971 |
| Citation / Document Symbol | [1972] Imm AR 56 |
| Type of Decision | TH/383/70 |
| Cite as | Shah, (SDL) v. Secretary of State for the Home Department, [1972] Imm AR 56, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 17 February 1971, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b63b17.html [accessed 26 May 2023] |
| 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. |
SHAH, (SDL) v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/383/70
Immigration Appeal Tribunal
[1972] Imm AR 56
Hearing Date: 17 February 1971
17 February 1971
Index Terms:
Special voucher -- East Africa -- Citizen of United Kingdom and Colonies subject to control -- Method of issue of special vouchers not subject to appeal under Immigration Appeals Act 1969.
Held:
The appellant, A British subject, citizen of the United Kingdom and Colonies from Kenya, was admitted to the United Kingdom, exceptionally, as a visitor for 3 months, having arrived without a special voucher (under paras 5 and 27 of Cmnd 4298) or other document entitling him to admission. He subsequently sought permission to remain permanently; this was refused on the grounds that (i) though he was eligible for a special voucher (for which indeed he had applied in Kenya) this could not be issued in the United Kingdom, and (ii) as a visitor he was subject to the provisions of para 7 of Cmnd 4295 (Commonwealth Citizens; Control after Entry), which did not permit persons admitted as visitors to stay here permanently in employment. He appealed to an adjudicator and, on the adjudicator's dismissal of his appeal, to the Tribunal, submitting inter alia that the respondent had exercised a discretion in refusing him a special voucher and that the adjudicator should have allowed the appeal by finding under s 8(1)(a)(ii) that this discretion should have been exercised differently. Held: The appeal must be dismissed because (i) the method of the issue of special vouchers in East Africa was outside the appeals system; n1 (ii) having been admitted as a visitor not prohibited from taking employment the appellant could not (under para 7 of Cmnd 4295) stay here permanently in employment, and therefore (iii) the respondent's refusal to vary the appellant's conditions of admission to enable him to stay here permanently was not an exercise of discretion under s 8(1)(a)(ii) of the Immigration Appeals Act 1969 but was, under sub-s (1)(a)(i) of s 8, in accordance with the law and the immigration rules applicable to the case, and the adjudicator in dismissing the appeal acted properly under s 8(1)(b) of the Act. n1 The special voucher scheme for East Africa is under the control of the Foreign and Commonwealth Office.Counsel:
Mrs. M. Dines of the Joint Council for the Welfare of Immigrants, for the appellant. C. F. Woodiss for the respondent. PANEL: Sir Derek Hilton (President) P. N. Dalton, Esq. (Vice-President), Mrs. J. M. AbrahamsJudgment One:
THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr. T. D. Healy) dismissing the appeal of the appellant against the refusal of the respondent to vary his conditions of admission so as to permit him to remain permanently in the United Kingdom. The appellant was born on 10 December 1945 and is a British subject, citizen of the United Kingdom and Colonies. He arrived in the United Kingdom from Kenya via Brussels on 31 May 1970 and asked to be allowed to remain permanently in the United Kingdom. As he was not in possession of a voucher he was refused admission under s 2 of the Commonwealth Immigrants Acts 1962 and 1968 and he was returned to Brussels. The appellant returned to the United Kingdom on 8 June 1970 and was again refused admission as his circumstances remained unchanged. He was detained until 19 June 1970 when the respondent decided -- exceptionally -- to admit him as a visitor for three months. He was not prohibited from taking employment. On 3 September 1970 the appellant asked to do allowed to remain permanently in the United Kingdom. This application was refused as he was not in possession of a voucher and as a visitor he did not qualify to remain in the United Kingdom in permanent employment. He was granted an extension of stay until 19 March 1971 and he was told that consideration would be given to granting him a further extension of stay nearer that date. The appellant appealed against this decision under s 3(1)(b) of the Immigration Appeals Act 1969. His ground of appeal was "to establish my right for permanent settlement in the UK". The adjudicator dismissed the appeal, holding that the decision of the respondent was in accordance with the law and the immigration rules. The respondent had been asked to depart from those rules and he had refused to do so. He granted leave to appeal to the Tribunal. The appellant gave notice of appeal to the Tribunal, his grounds of appeal being: --"I could be admitted on a special voucher issued to me (see para 27 Cmnd 4298) either here or in East Africa. These are issued at the discretion of the H.O. I submit that the adjudicator was wrong in deciding he could not allow the appeal under para 8(1)(a)(ii) of the Appeals Act 1969."
In her submissions Mrs. Dines, on behalf of the appellant, reviewed the system of the issue of vouchers to Asians in East Africa who were the holders of D passports and stated that to her knowledge such vouchers had in a few cases been issued to persons already in the United Kingdom. She hoped the Tribunal would appreciate the difficult position in which the appellant was placed. He could not be regarded as a visitor as he was permitted to work. He did not conform as a true visitor to the provisions of para 13 of Cmnd 4298. In the case of the appellant the respondent had complete discretion in issuing vouchers in East Africa and in her opinion the respondent had exercised a discretion in refusing a voucher to the appellant. Therefore s 8(1)(a)(ii) of the Immigration Appeals Act 1969 applied and s 8(2) of that Act did not apply. In reply Mr. Woodiss said he was conscious of the gravity of the appellant's situation but he was eligible for a voucher and did apply for one. However he had decided to travel without a voucher and was admitted by the respondent at his discretion on a temporary basis. The appellant then sought to consolidate his advantage, which would result in unfairness to others. He submitted that the grounds of appeal were untenable. Special vouchers for those in East Africa could not be issued in the United Kingdom; the issue of such vouchers depended on regular personal interviews in the country concerned and applications were treated as having lapsed if the applicants failed to attend such interviews. The appellant was subject to the provisions of para 7 of Cmnd 4295 and he asked for the Tribunal to confirm the determination of the adjudicator. We find as follows: -- (1) The method of the issue of special vouchers in East Africa is outside the appeals system. (2) The appellant was allowed to enter the United Kingdom on compassionate grounds on a temporary basis by the respondent. (3) Having been allowed to enter the country as a visitor not prohibited from taking employment he must be treated thereafter on that basis. (4) Paragraph 7 of Cmnd 4295 reads as follows: --"7. A Commonwealth citizen admitted as a visitor cannot stay here permanently in employment. Commonwealth citizens coming to settle and take employment in the United Kingdom are admitted only if they hold vouchers issued to them by the Department of Employment and Productivity before they come."
(5) The first sentence of para 7 applies to the appellant. (6) In refusing to vary the conditions of admission of the appellant so as to permit him to remain permanently in the United Kingdom the respondent was not exercising a discretion under s 8(1)(a)(ii) of the Immigration Appeals Act 1969. (7) In so acting the respondent's decision was in accordance with the law and the immigration rules applicable to the case and the adjudicator acted in accordance with the provisions of s 8(1)(b) of the Act in dismissing the appeal.DISPOSITION:
Appeal dismissed.Copyright notice: Crown Copyright
