R v. Immigrational appeal Tribunal, Ex parte Masud
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 7 June 1991 |
| Citation / Document Symbol | [1991] Imm AR 564 |
| Cite as | R v. Immigrational appeal Tribunal, Ex parte Masud, [1991] Imm AR 564, United Kingdom: High Court (England and Wales), 7 June 1991, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63f0.html [accessed 30 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. |
R v IMMIGRATION APPEAL TRIBUNAL ex parte MASUD
Queen's Bench Division
[1991] Imm AR 564
Hearing Date: 7 June 1991
7 June 1991
Index Terms:
Leave -- variation -- application for extension -- trainee accountant -- work permit -- application for extension sent by employers to Department of Employment -- letter returned by department -- subsequent application by employers to Home Office after applicant's leave had expired -- whether application erroneously made to the Department of Employment was a timeous application for variation of leave attracting on refusal a right of appeal. Immigration Act 1971 s 4: HC 169 para 7.
Held:
The applicant for judicial review was a citizen of Pakistan. He arrived in the United Kingdom as a visitor in 1982. He became a trainee accountant, which position required a work permit: that was granted, and in consequence, his leave to remain was varied: the last variation expired in December 1985. In that month his employers applied for a further short extension. They applied by letter to the Department or Employment. That department returned the application to the employers, indicating that it was not the department to which application should have been made. The employers accordingly then made application to the Home Office, but by then the applicant's leave had expired. When the application was refused, he had no right of appeal. Before the court counsel argued that the Tribunal had erred in concluding there was no right of appeal. The relevant statutory provision did not refer specifically to the Secretary of State for the Home Department. Accordingly the application originally made the Department of Employment was a timeous application that attracted a right of appeal. Held: 1. It could not be argued that an application made to any department constituted a proper application which, on refusal, gave rise to a right of appeal. 2. By paragraph 7 of HC 169 it was made clear that all applications for variation of leave had to be made to the Home Office.Cases referred to in the Judgment:
Naved Masud v Secretary of State for the Home Department [1989] Imm AR 538.Counsel:
A Riza QC for the applicant; R Jay for the respondent PANEL: Macpherson JJudgment One:
MACPHERSON J: In this case Mr Riza applies, at considerable length, on behalf of a man called Mr Naved Masud for judicial review. Leave had been given to make that application on 17 October 1989. The applicant is a citizen of Pakistan and he challenges the decision of the Immigration Appeal Tribunal of 8 June 1989, nearly two years ago, which dismissed his appeal against the determination of the adjudicator dismissing his appeal against the decision of the Secretary of State to make a deportation order against him under section 3(5)(a) of the Immigration Act 1971. The result of the delay in the list has been that this man has been in this country effectively for two years since the Tribunal decision and for over eighteen months since leave was granted. I am told that his exams are next week; presumably the Home Office will allow him to take those and then he will have to leave because I am absolutely convinced that there is nothing in this case whatsoever. On 18 July 1982 the applicant was granted leave to enter the United Kingdom for six months as a visitor. He was granted various extensions of leave to remain by applications, presumably made to the Home Secretary or the Home Office, as a trainee accountant until 31 December 1985; that is over five years ago. On 17 December 1985 his employers, Price Waterhouse & Company, wrote to the Department of Employment asking for an extension, not a long one but until February 1986, so that the longest that anyone had applied for him, or wished him to stay in this country as a trainee accountant at that time, was two months from the date of the application namely, February 1986. That letter was sent back because the Department of Employment indicated that they were not the people to whom that application should have been made. Unfortunately, the letter did not get back to Price Waterhouse until January 1986. Price Waterhouse thereafter applied to the Home Office obviously realising that the Home Office had all the time been the correct department to which the application should have been made but, by that time, the applicant's limited leave had expired and he consequently did not have a right of appeal against any refusal. The application was formally refused on 16 June 1986. The history relates that in September 1986 the applicant applied to remain in training with another firm of accountants because Price Waterhouse had terminated his contract because he had failed his examinations. That application was refused on 15 June 1987. The applicant did not leave the country and by reason of either delay or goodwill, he was allowed to stay until 21 October 1988 when the Secretary of State made the decision to deport him under section 3(5)(a) because he had no leave to remain. The adjudicator considered the matter and so did the Immigration Appeal Tribunal. There is only one point in the case. The question is, "Was the letter sent to the Department of Employment the wrong place in law?" Mr Riza has argued, by reference to various rules and references to the Act of 1971 and the Act of 1988, that a man may make an application to any department. This is implicit in his argument. He does limit it to the Department of Employment because he says they are the people who are responsible for the work permit. In my judgment the result of his submission must be that it does not matter to which department the application goes and that, as the adjudicator said, is an absurdity. To write a letter to the Ministry of Agriculture of Fisheries and Food asking for an extension of time would be ridiculous and it is no less ridiculous, in my judgment, to apply to the Department of Employment. The rules made under the Act make it perfectly plain, by rule 7, that after admission applications for extension must be made to the Home Office. It is perfectly true that the Secretary of State is not defined as the Home Secretary in the relevant legislation but everybody involved in this field and anybody looking at the rules would at once realise that the application must be made to the Home Office. I believe that Price Waterhouse realised that full well as soon as they got the letter back from the wrong department because they applied to the Home Office. In my judgment there is nothing in this case at all. This applicant has been allowed to remain in this country for years after he should have gone. He has been fortunate in that, if he likes this country, but he will now have to leave. Without any hesitation I reject this application for judicial review.DISPOSITION:
Application dismissedSOLICITORS:
Howard Cohen, Leeds; Treasury SolicitorCopyright notice: Crown Copyright
