R v. Immigration Appeal Tribunal, Ex parte Toshifumi Takeo and Keiko Takeo
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 15 June 1987 |
| Citation / Document Symbol | [1987] Imm AR 522 |
| Cite as | R v. Immigration Appeal Tribunal, Ex parte Toshifumi Takeo and Keiko Takeo, [1987] Imm AR 522, United Kingdom: High Court (England and Wales), 15 June 1987, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6598.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 TOSHIFUMI TAKEO AND KEIKO TAKEO
Queen's Bench Division
[1987] Imm AR 522
Hearing Date: 15 June 1987
15 June 1987
Index Terms:
Appeal -- right of appeal -- where the Secretary of State in the exercise of his statutory power grants extensions of leave in circumstances where there is no provision in the rules for such extension and subsequently refuses a further extension, whether an appeal will lie to the immigration appellate authorities. Immigration Act 1971 s 3(3): HC 81 paras 2,25: HC 82 para 4: HC 394 para 31 and transitional provisions: HC 169 paras 31-34, 117 and transistional provisions.
Immigration rules -- transitional provisions -- whether they have retrospective effect -- whether a restrictive interpretation of the immigration rules is proper where that leads to a denial of right of appeal.
Held:
The first applicant for judicial review had been admitted to the United Kingdom as the sole representative of an overseas company. In that capacity he had been granted extensions of leave, albeit the then current rules made no provision for the grant of such extensions. After a chequered immigration history the applicant applied for yet further extension of leave as the sole representative of an overseas company. The rules then current allowed extension of leave in that capacity only too those who had been admitted in that capacity in accordance with the specific paragraphs and provisions of the then current rules, which the applicant had not. None of the transitional provisions of the rules covered the case. The Tribunal held that on the true interpretation of the rules, the applicant had no claim under the rules to an extension of leave and thus no right of appeal against the refusal by the Secretary of State, before the appellate authorities. Held: 1. The Secretary of State had granted the earlier extensions of leave under his statutory powers, albeit the rules did not cover the case. 2. The Tribunal erred in applying a restrictive interpretation to the rules: "it was . . . ['not] . . . a justified view of the Immigration Appeal Tribunal to say that the omission of permit-free employees from the rules relating to remaining after entry is restrictive so as to shut out the appeal of such an applicant who has been refused an extension."Cases referred to in the Judgment:
R v Secretary of State for the Home Department ex parte Hosenball [1977] 1 WLR 766. R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352: [1986] 1 WLR 910.Counsel:
G Warr for the applicant; J Holdsworth for the respondent PANEL: McNeill JJudgment One:
MCNEILL J: Counsel moves on behalf of Mr and Mrs Takeo for judicial review by way of certroria to quash a decision of the Immigration Appeals Tribunal dated 17 October 1985. The question posed for the court raises a point of construction of the Immigration Act 1971 and for the immigration rules made thereunder. The Tribunal decided the appeal before them on the point of construction and did not go on to consider the factual issues which would have been in point if they had concluded the matter in the other way. The facts of the case are not easy to ascertain and I take what I can as the foundation for this judgment, first of all, from the decision of the adjudicator. Before 1977, the male applicant's visits this country showed a somewhat chequered pattern. For present purposes, it is sufficient to say that in 1977 he obtained leave to remain in this country as the sole representative of a business called Sunpack International, that business being an overseas firm which had no branch, subsidiary or other representative in the United Kingdom. The basis upon which a person is qualified for entry in that category is to be found in HC 81 of 1973, paragraph 25, that statement dealing with control on entry. So far as is necessary for the purposes of this judgment, it reads: "Passengers in the following categories, although coming for employment do not need work permits and may be admitted for an appropriate period not exceeding 12 months. If they hold a current entry clearance granted for the purpose or other satisfactory evidence that they do not require permits . . ." One of the 12 categories reads as follows: "Representatives of overseas firms which have no branch, subsidiary or other representative in the United Kingdom." It can only be assumed that the applicant had obtained entry or was recognised by the Secretary of State as having obtained entry under that paragraph on the basis that he had provided the satisfactory documentary evidence that is referred to. The relevant provisions at that date for control after entry are to be found in HC 82 of 1973. There is no specific provision in that paper for control after entry of persons who obtained leave to enter under rule 25 HC 81. It will be noted that rule 25 provided for an appropriate period not exceeding 12 months. On a date which is uncertain, the applicant's leave to remain was extended until 16 May 1980. On 6 May 1980 an application was made further to extend his leave in the same capacity. In the meantime, in December 1979, the applicant had been arrested. Matters remained in abeyance until after his appearance at the Central Criminal Court in March 1981 when he was fined and a suspended sentence of imprisonment was imposed. The charge or charges related to fraud in the supply of airline tickets. The occupation in which the applicant had been engaged over a number of years was connected with travel agency business, working up from beginnings as a guide or courier to parties of Japanese tourists visiting this country. Whatever the situation at that stage was under the immigration rules, on 17 December 1981, the Secretary of State made two decisions. One was that the applicant should be deported and the other was that his application of 6 May 1980 should be refused. In relation tothe decision to deport, the applicant brought an appeal against that decision and on 9 February 1983, the decision was quashed, his appeal being allowed. No notice of appeal was given at that stage against the refusal of the extension of leave to remain. When the Secretary of State refused leave to remain on 17 December 1981, he did so in express reliance of HC 81, paragraph 25, and on HC 82, paragraph 4. There was no particularisation of the material part of HC 81, paragraph 25, on which the Secretary of State was relying. It may be that that was simply to identify the category in which the applicant was acepted as having originally or at some stage entered the United Kingdom. Continuing the history, the applicant did not give notice of appeal against refusal of extension so the question arises, as the Immigration Appeal Tribunal questioned, whether that decision, or at least an application to seek leave to appeal out of time against that decision, was itself appealable. When the Secretary of State referred to rule 4 of HC 82, he was, in part at least, drawing attention to one of the matters expressed to be relevant. That rule reads: "The succeeding paragraphs set out the main categories of people who may be given limited leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with their applications, or in initiating any variation of their leave. In deciding these matters account is to be taken of all the relevant facts . . ." Among the relevant facts are these: ". . . whether in the light of his character, conduct or associations it is undesirable to permit him to remain . . ." It is not difficult to assume that the Secretary of State had in mind in that last category and in that last consideration the desirability of permitting to remain in this country a man who had a conviction for conspiracy and fraud in the context of the business in which he had had leave to remain. At the same time, it is impossible to avoid the sense of the opening words of that paragraph because it does not do more than say that what follows deals with the main categories of people who may be given limited leave to enter. As I have already observed, there is no specific provision for those who enter as permit-free employees in HC 82. Of course, HC 82, rule 2, sets out the general principle and refers back to section 3(3) of the Immigration Act 1971. It cites that section, saying: ". . . a limited leave to enter or remain in the United Kingdom may be varied by extending or restricting its duration, by adding, varying or revoking conditions or by removing the time limit (whereupon any conditions attached to the leave cease to apply). The main purpose of this part of the rules is to set out, in relation to the chief categories concerned, the principles on which leave to enter or remain will, on application, be varied. In the following paragraphs 'leave to enter' includes leave to remain." It is not surprising, having regard to the fact that the succeeding paragraphs set out main categories of people, that there is no specific provision for permit-free employees against the background that one is postulating, under rule 25 of HC 81, an overseas firm with no branch subsidiary or other representative in the United Kingdom. It might well be that the Secretary of State might think that Parliament might have assumed that such a firm might well have, on the other hand, a longstanding employee, staying on for years and years, or, on the other, a series of replacements from the country overseas. Such a person is not, for what I think are obvious reasons, put into one of the main categories under rule 4. The Secretary of State relied on rule 4 and I think rule 4 has to be read in the light of its own preliminary wording and of rule 2 and section 3(3). The success of the appeal against the deportation order resulted in the applicant being given what is called "bag packing leave" for one month. That leave was extended exceptionally to 12 September 1983, giving him a period of very nearly six months. That extension was granted in the terms of a letter dated 14 March 1983 from the Home Office and what was said was this: "Mr Takeo should be made aware that he has no claim to remain in the United KIngdom as a sole representative although consideration may be given to any application made by him from abroad for an entry clearance to return to the United Kingdom on this basis. Would you therefore advise your client that he should leave the United Kingdom within the period of his leave to remain and that if the wishes to return to the United Kingdom to continue in permit-free employment, no guarantee can be given that any application for such an entry clearance (or for business purposes) would necessarily be granted." The context in which that letter was written is to be found in HC 394 of 1980, by which time the provisions of rule 25 of HC 81 had been varied. Rule 31 of HC 394 did two things. First of all, in relation to three of the categories including representatives of overseas firms which have no branch, subsidiary or other representative in the United Kingdom, only a current entry clearance was sufficient to permit entry without work permit. In other words, the qualification "by other satisfactory documentary evidence" was omitted. At the same time, that provision, that is to say, other satisfactory documentary evidence" was retained in rule 33 for six other categories including, as the first, private servants of members of the staffs of diplomatic or consular admissions and so on. An application was then made to the Home Office on the applicant's behalf under three headings. I am only concerned with the way in which the Secretary of State treated one of those, which was an alternative, that is to say, an application for a further year's leave to remain as sole representative of what was then called Travel Topia Ltd. That firm, as will be appreciated, is not the same in name as Sunpack International and one of the matters which the Immigration Appeal Tribunal would have had to decide if they had determined this matter adversely to the Secretary of State was the relationship, if any, between those two businesses or indeed yet a third, EIS. The applicant's case on the facts, in summary, was that whatever the name of his employer was, he was still doing the same job for the same people in the same place. So far as that application in the alternative was concerned, the Secretary of State's refusal to extend further the applicant's leave to remain as the sole representative was dated October 1983. By that time, there had come into force HC 169 of February 1983. The argument before the Tribunal and before this court was that the applicant, by reason of those rules, did not qualify for an extension. In other words, he was outwith the relevant paragraph of HC 169, that is to say, paragraph 117. It has been necessary to deal with these rules in some detail because each set of rules is, by its title, a statement of changes in the rules, all in the context of section 3(3) of the 1971 Act. Indeed, the rubric in each case describes what is laid before Parliament as further changes in the rules as to the practice to be followed in the administration of the Act. The way in which it was put before the Tribunal, as it was put by Mr Holdsworth before me, was this. The provisions of HC 169, for the extension of leave to remain in October 1983 applied only to persons who had been admitted in accordance with paragraph 31-34 of that paper. As the applicant at best had not been admitted as the holder of a current entry clearance, he was not qualified for the concession in rule 117, which reads: "Unless there are special reasons to the contrary the extension should be for three years" except for certain exceptions which do not apply to this applicant. It goes on to say that a corresponding extension should be granted to an applicant's wife and children. I have already referred to the way in which the alteration followed in rule 31 of HC 169 was formulated in rule 31 of HC 394. It is necessary also to look at rule 108 of HC 394, which is also repeated, in effect, in rule 117 of HC 169. Rule 108 reads as follows: "A person admitted in accordance with paragraphs 31-34" -- with certain exceptions -- "may be granted extensions of stay if he is still engaged in the category of employment" and so on, with a normal extension of three years. What the Tribunal said was this: "Mr Wilmott, for the Secretary of State said that as the extension had been granted under HC 80, the extension of that stay must have been granted outside the rules by discretion of the Secretary of State because there was no provision in the current 'after entry' rules (HC 82) for extensions of leave to remain in permit-free employment. That was Mr Wilmott's contention and he was undoubtedly right. Moreover, there is no reference in the transitional provisions of the 1980 rules (HC 394) to permit-free employment so that an individual granted leave to remain in that capacity under HC 80 cannot carry through any claim to an extension of that leave under HC 394. Likewise, the transitional provisions in HC 169 make no reference to permit-free employment, and thus no claim to an extension is carried through from HC 80 to HC 169". The reference to HC 80 needs no further amplification save that there is nothing there which is not on this point effectively repeated in HC 82, to which I have already referred. The Tribunal then said: "It was Mr Wilmott's submission that on a true reading of paragraph 117 of HC 169, the appellant could not secure an extension of his leave to remain as a sole representative because he had not been admitted in accordance with the relevant paragraph to which that rule refers." The Tribunal then set out what they regarded as the relevant words of 117, that is to say, the opening words of the rule: "A person admitted in accordance with paragraphs 31-34 . . ." The Tribunal then continued: "Mr Wilmott's submission depends on the interpretation of the phrase 'in accordance with paragraphs 31-34'. If this phrase means restrictively one of those specific paragraphs, then his submission is correct. If 'in accordance with' means in practice 'paragraphs 31-34 or some rule of similar content in an earlier set of rules' his submission would not be the end of the matter. Mr Warr submitted to us that Mr Wilmott's interpretation could not be correct. It would deny those in the position of the appellant any effective right of appeal. In so far as there was no transitional provision to link HC 80 to the present rules in this matter, it must be no more than an error of drafting, as was the specific reference to precedent paragraphs rather than to the categories therein mentioned." The Tribunal rejected Mr Warr's submissions and concluded that on the proper construction of paragraph 117, the phrase "in accordance with" was restricted to what was provided by paragraphs 31-34. The Tribunal therefore concluded that as the applicant did not come within paragraph 31, rule 117 did not apply. There was a reference to transitional provisions. The first reference is to the transitional provisions in HC 394, upon which Mr Holdsworth relies, again substantially repeated in HC 169, paragraphs 172 and following. Paragraph 158 provides for the applications made before specific dates: in HC 394, 1 March 1980; in HC 169, 16 February 1983. That is for the application of such decisions of the precedent provisions of the relevant House of Commons papers. None of those is material here. In rules 159, 160 and 161 in HC 394 and in rules 174, 175 and 176 in HC 169, specific provision is made for marriage, approved employment, working holiday, setting up business, self-employed person, persons of independent means and the like. In HC 169 it is for businessmen, self-employed persons, persons of independent means and so on. In none of those categories does the present applicant fit. I do not think that the transitional provisions assist in this case. The rules have undoubtedly been changed. The transitional provisions in HC 394 and in HC 169, which tightened up the qualifications for extension after entry or indeed for entry itself, cannot have retrospective effect. What is argued is that since December 1981 the applicant has had no right to remain in the capacity even of a permit-free employee, although he accepts that there might be said to be an anomaly in not providing for permit-free employees in the transitional provisions in either set of rules. However, he says that as Parliament has expressly approved the omission from those two sets of transitional provisions of the permit-free employee, the permit-free employee is given no advantage or indications as to how his application will be treated, enabling him to be in the position in which he would have been if his application for extension had been made within the period after his leave to enter during which the rules, then current, continued to apply. I have come to the conclusion that this is not an omission which is merely an anomaly and it is not an omission which excludes the applicant from having an appealable decision if the decision is otherwise appealable. The only qualification I place on that is that as the Secretary of State has appeared to have treated the applicant, at any rate up to October 1983, as a person with leave to remain as a permit-free employee, the applicant is not excluded from exercising such rights of appeal in relation to extensions as he otherwise might be. It seems to me that the Secretary of State and Parliament recognised that such a person is not a main category of applicant for whom these rules, with some precision, are required. He, treating the applicant under his basic statutory powers, never thought it necessary to make specific provision for the period of normal extension of such a person. Having laid down an original 12 month period, he certainly, in practice, accepted that he had the right to extend that for periods which in no sense are limited by the statements of changes in rules. I was reminded of the words of Lord Bridge in R v Immigration Appeal Tribunal, Ex parte Bakhtaur Singh [1986] 1 WLR 910, 917, expressing and repeating what has been frequently said: "Immigration rules made under section 3(2) of the Act are quite unlike ordinary delegated legislation: see the observations of Lord Denning MR, Geoffrey Lane and Cumming-Bruce LJJ in R v Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 WLR 766, 780-781, 785 and 788. The rules do not purport to enact a precise code having statutory force. They are discursive in style, in part merely explanatory and, on their face, frequently offer no more than broad guidance as to how discretion is to be exercised in different typical situations. In so far as they lay down principles to be applied, they generally do so in loose and imprecise terms . . ." His Lordship then went on in his speech to give some examples. I do not think it was a justified view of the Immigration Appeal Tribunal to say that the omission of permit-free employees from the rules relating to remaining after entry is restrictive so as to shut out the appeal of such an applicant who has been refused an extension. That effectively disposes of this application, but for completeness, I should say that a further argument that Mr Holdsworth advanced to the effect that the applicant never "entered" as a permit free employee is not -- and I think he accepted this in the end -- sustainable upon the adjudicator's findings. In the circumstances, therefore, this application is granted. Certiorari will go and the matter will have to be remitted to the Tribunal for consideration of the merits.DISPOSITION:
Application granted.SOLICITORS:
Crosling & Baldwin, London N1, Treasury Solicitor.Copyright notice: Crown Copyright
