Kelzani v. Secretary of State for the Home Department

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	7 November 1978
Citation / Document Symbol	[1978] Imm AR 193
Type of Decision	TH/29270/78(1385)
Cite as	Kelzani v. Secretary of State for the Home Department, [1978] Imm AR 193, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 7 November 1978, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b62e8.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.

KELZANI v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/29270/78(1385)

Immigration Appeal Tribunal

[1978] Imm AR 193

Hearing Date: 7 November 1978

7 November 1978

Index Terms:

Stateless person -- Deportation -- Holder of travel document issued by the Egyptian Government -- Document's validity renewed for 5 years in May 1975 -- Permanent residence in Egypt not a right, but evidence that holder would be permitted (by a visa) to enter Egypt and to apply to work there -- Whether expulsion by deportation (for breach of conditions of limited leave to enter and remain) was contrary to the provisions of articles in the 1954 Convention on the Status of Stateless Persons -- Immigration Act 1971, s 3(5)(a) -- HC 82, paras 49, 56, 61 -- Convention relating to the Status of Stateless Persons 1954, arts 1, 2, 3, 31 (Cmnd 1098 d July 1960)

Held:

The appellant ("K") was a stateless person. He was born in 1947 in Palestine. He was given leave to enter the United Kingdom in August 1970 on a travel document issued to him by the Egyptian Government and a student entry visa issued to him in Amman. He was admitted for 2 months on a condition prohibiting entry into employment, and his leave was subsequently extended to 3 March 1972 on the same condition. Thereafter he was allowed to take employment with a named firm and to continue in that employment by extensions up till 3 May 1975. But before the final extension expired he changed his employment without permission. This came to light in October 1974 when he applied for cancellation of the conditions attached to his stay following 4 years' residence in the United Kingdom n1. The Department of Employment did not approve K's current employment, and while seeking to find employment acceptable to that Department during a period of extended leave he drew unemployment benefit. He failed to find acceptable employment, and the respondent in September 1975 when refusing K's application of October 1974 (because K had not completed 4 years in approved employment, as required by para 26 of HC 82) granted him a short extension (until 23 January 1976) solely to enable him to arrange his departure.

n1 K purported to invoke a provision in para 26 of HC 82 which states that "When a person admitted in the first instance for a limited period has remained here for 4 years in approved employment... the time limit on his stay may be removed".

K did not leave the United Kingdom, and on 13 February 1978 a notice of intended deportation under s 3(5)(a) of the Immigration Act 1971 was served upon him following upon convictions for overstaying and for failing to observe a condition of his limited leave (in entering into unauthorised employment) under s 24(1)(b) of the 1971 Act. In the notice of intended deportation the Secretary of State stated that he proposed to give directions for K's removal to Egypt. In May 1975 K had been granted by the Egyptian Consulate in London a further travel document, valid for 5 years, and there was evidence that he could be issued with a visa for re-entry into Egypt and that he would be able to seek a job there together with a work permit.

Appealing to an adjudicator against the proposed deportation, K contended that he had no home to which he could go, having lost touch with his family since the 1973 war. The adjudicator took into account a letter (to K's representative) from the Legal Adviser to the Representative of the United Nations High Commissioner for Refugees, noted the special provision for Stateless persons in respect to deportation (para 56 of HC 82) n2 and, after accepting that K had a valid (Egyptian) travel document, he concluded that on the facts the public interest favouring deportation outweighed the compassionate circumstances advanced by K under para 49 of HC 82 n3.

n2 Paragraph 56 of HC 82 requires that when deportation of a Stateless person is contemplated "full account... be taken of the provisions of the relevant international agreements to which the United Kingdom is a party."

n3 Paragraph 49 of HC 82, omitting inapplicable words, provides: "Deportation will normally be the proper course where the person has persistently contravened or failed to comply with a condition or has remained without authorisation... But full account is to be taken of all the relevant circumstances before a decision is reached."

On K's appeal to the Tribunal the provisions of the 1954 Convention relating to the Status of Stateless Persons (ratified by the United Kingdom in 1959) were urged on his behalf, in particular art 31 dealing with the expulsion of Stateless persons from the Contracting States. n4

n4 Articles 1, 2, 3 and 31 of the 1954 Convention relating to the Status of Stateless Persons are set out on p 198, post.

Held (dismissing K's appeal), (a) the proposed deportation of K in no way ran counter to art 31 of the 1954 Convention inasmuch as (i) the control of immigration was necessary for the maintenance of "public order"; (ii) the Secretary of State's decision was taken in accordance with the law as set out in the Immigration Act 1971 and the relevant immigration rules: the ground for deportation (overstaying a limited leave) was specified in the Act; (iii) the stipulated procedural formalities had been observed and K had been granted and enjoyed rights of appeal and representation;

(b) the fact that K's travel document gave him no permanent right of residence in Egypt did not preclude directions for his removal to that country: Egypt had assumed responsibility for issuing travel documents to Palestinians and there was no evidence that K would be shuttled backwards and forwards between countries unwilling to have him; on the contrary, the evidence indicated he would be allowed to work in Egypt;

(c) having travelled here under a document issued by the Egyptian Government, a document which was still valid, K could not elect to stay on here in defiance of the law now that his limited leave had expired, and the proposal to give directions for his removal to Egypt was in accordance with para 61 of HC 82 n5.

n5 Under para 61 of HC 82 a person may be removed on deportation to the country "which has most recently provided him with a travel document".

Counsel:

A. McGeachy of the United Kingdom Immigrants Advisory Service, for the appellant.

W. G. Chalmers for the respondent.

PANEL:

A. Hooton Esq (Vice-President), E. A. Lewis Esq, T. Neil Esq

Judgment One:

THE TRIBUNAL: The appellant Mr Rizak Aly Hassan Kelzani (also known as Christopher Kelzani) appeals, with the leave of the Tribunal, against the determination of an adjudicator (Mr. G. W. Farmer) dismissing his appeal against the decision of the respondent to make a deportation order against him by virtue of s 3(5)(a) of the Immigration Act 1971.

The appellant's nationality is undetermined -- he is stateless. He was born in Palestine in the area now known as the Gaza Strip in 1947. On 12 August 1970 he came to this country. He did not have a passport but had been issued with a travel document by the Egyptian authorities and was in possession of a student entry visa issued in Amman. He was admitted in the first instance for two months with a condition prohibiting employment. His leave subject to the same condition was extended to 3 March 1972. Subsequently he was allowed to take employment with C. & T. Harris in Calne and his permission was progressively extended to 3 May 1975 to enable him to continue in employment with that firm. However, without permission he changed his employment, on 28 May 1974, going to Linton & Hirst Ltd. On 9 October 1974 he applied for cancellation of the conditions attached to his stay following 4 years' residence in the United Kingdom. His employment with Linton & Hirst Ltd was rejected by the Department of Employment on 6 February 1975 and that firm thereupon ceased his employment. He subsequently drew unemployment benefit. Thereafter he was given a number of opportunities to find employment acceptable to the Department of Employment and his leave was extended for this purpose until 30 October 1975. He failed however to find acceptable employment. His application of 9 October 1974 was refused on 16 September 1975, since he had not completed 4 years in "approved" employment n6, and on 29 December 1975 the respondent further refused to allow him to remain in the United Kingdom for employment, since he had not submitted an offer acceptable to the Department of Employment n7. The Secretary of State granted him, however, a short extension until 23 January 1976 solely to enable him to arrange his departure.

n6 As required under para 26 of HC 82, the relevant provision of which is set out in footnote 1, ante.

n7 As required under para 5 of HC 82.

The correctness of the respondent's refusals is not challenged by Mr McGeachy and was confirmed on 26 April 1977 is an advisory opinion of an adjudicator (Air Vice-Marshal R.C. Ayling), who had this to say:

"It is in my experience unusual for a student, particularly one admitted as this applicant was on no-employment conditions, to be allowed to take employment and to be extended in such employment until he himself broke away and changed his job without authority. It is still more unusual, verging almost on the quixotic, for the respondent thereafter, over a period of several months, to have given him repeated opportunities to redeem his situation and find acceptable employment even though he was living on public funds. And even to extend these opportunities further after the first refusal had been decided and notified. The decisions under review were correct in law and discretion was used repeatedly in the applicant's favour.

It has been put to me that I should nevertheless in this case recommend the use of the respondent's ultimate discretion to let this applicant stay. I do not find the arguments easy to balance. First, I do not believe that he is unreturnable to Egypt, but this is a technical matter and if I am wrong in this I would recommend that he be allowed to stay without regard to the other factors. As to these factors, his character is not unblemished and my brief impression of him as a witness was not especially favourable; he was sometimes evasive and his attitude appeared to be, somewhat aggressively, that the UK owes him a living. But I expect that most Palestinians have similar feelings and many have good reason for them and, as I have said, reputable witnesses who know far more of him than I offer more charitable judgments. His record as an employee appears consistently good. He has to some extent been the victim of 'Catch 22' situations in that potential employers have been initially willing to employ him but have been unwilling to incur the delays inherent in the Department of Employment/Home Office approval procedure. But his troubles are originally of his own making and he has been given repeated opportunities to repair them. To recommend further help now is almost to demand that because he has already been given so much he now be given more. Perhaps the best solution would be the somewhat crude one of putting his present employment situation to the Department of Employment and abiding by their decision upon its acceptability as to whether he stays or is required to leave without further delay. I can see no case for going further than that and I think that an early decision should be made."

The Department of Employment was sitll, however, unable to approve current employment of the appellant at the Blunsdon House Hotel, and on 12 September 1977 the Home Office again informed him that he should make immediate arrangements to leave the United Kingdom and on 22 October 1977 he was interviewed by an officer of police and advised to go. He did not go. On 7 November 1977 he was arrested and charged with knowingly remaining in this country beyond the time limited by his leave, contrary to s 24(1)(b)(i) of the Immigration Act 1971 and with failing to observe a condition of that leave in that he had entered into employment without the consent of the Secretary of State for Employment contrary to s 24(1)(b)(ii). He was found guilty on both charges and fined a total of @ 50. No recommendation for deportation was made, but after considering the matter the respondent decided to make a deportation order against him under s 3(5)(a) of the Immigration Act 1971 by reason of his overstaying, and proposed giving directions for his removal to Egypt. Notice was served on the appellant on 13 February 1978.

The appellant's case that he should not be deported is based upon his contention that he has no home to which he can go and he has so maintained over a long period. As already mentioned, he arrived on a travel document issued by the Egyptian Government. A further travel document was issued to him on 4 May 1975 by the Egyptian Consulate in London, valid for 5 years. It does not give him the right of permanent residence in Egypt but in a letter to him dated 30

May 1977 the Consul-General informed him that he could be issued with a visa, (which all non-Egyptians require) for one month and that he could seek a job in Egypt together with a work permit. Incidentally the appellant now claims to have lost his travel document in London on 23 June 1978. In a letter dated 17 May 1977 the Consul at the Israeli Embassy in London wrote to him that permission for his return to the Gaza Strip should be obtained by his family in that area. Once the competent authority there approved the request, the necessary entry visa could be granted. The appellant claims to have written to his parents, but not to have received a reply -- he had had no contact with them since the 1973 war.

At the hearing of the appeal to the adjudicator against the decision to make a deportation order, no witnesses were called. The Legal Adviser to the Representative of the United Nations High Commissioner for Refugees indicated that, after studying the papers, the Representative did not wish to be treated as a party to the appeal. However Mr McGeachy submitted a letter dated 11 July 1978 from the Legal Adviser (Dr G. S. Goodwin-Gill), the text of which is as follows:

"Thank you for the papers in the case of Risz El Kelzani.

As you rightly observe, the situation of stateless persons is akin to that of refugees and the international community has taken similar steps to assure their protection. The 1954 Convention on the Status of Stateless Persons (ratified by the United Kingdom in 1959) n8 defines a stateless person as 'a person who is not considered as a national by any State under the operation of its law'.

n8 See Treaty Series No. 41 (1960), "Convention relating to the Status of Stateless Persons". The United Kingdom ratification was deposited on 16 April 1959. Cmnd 1098 d July 1960.

States parties to the Convention have accepted obligations very similar to those adopted under the 1951 Convention relating to the Status of Refugees. For example, they have agreed to issue travel documents to stateless persons lawfully staying in their territory (Article 28) and not to expel stateless persons lawfully in their territory save on grounds of national security or public order (Article 31). No article on non-refoulement (the prohibition on return of a person to a country in which his life or freedom would be threatened) was included, the Conference of Plenipotentiaries having found that the prohibition was now an established principle of public international law.

The 1954 Convention contains no provision obliging a State Party to grant residence to a stateless person, but clearly the discretion of a State to remove stateless persons is circumscribed by its international obligations. In 1960 it was said in the House of Commons on behalf of Her Majesty's Government, that no other State can be required to accept a stateless deportee and that the power of deportation was not therefore available in a case in which a person's naturalization had been revoked following conviction for espionage offences (case of Klaus Fuchs: 606 H.C. Deb., Col. 1176). The present case is by no means identical, but the statement in Parliament nevertheless indicates the principles involved in the treatment of stateless persons."

In his determination Mr Farmer found that the appellant had "persistently contravened" and "failed to comply with a condition" and had "remained without authorisation" over a long period. He took note of the provisions of para 49

of HC 82 which provide that "deportation will normally be the proper course" in such circumstances, but that it was necessary to take account of "all the relevant circumstances". He cited the provisions of para 56 of HC 82 which read:

"Where a person is stateless or a refugee full account is to be taken of the provisions of the relevant international agreements to which the United Kingdom is a party."

The adjudicator accepted that the appellant has a valid travel document issued by the Egyptian authority and concluded his determination as follows:

"Looking at the evidence as a whole and bearing in mind the arguments which have been urged on the appellant's behalf by Mr McGeachy, I am of the view that if the public interest is balanced against the compassionate circumstances of this case the Secretary of State was correct in the decision which he took on 13 February 1978.

For the reasons I have given I therefore dismiss this appeal."

The grounds of appeal to the Tribunal are:

"1. The adjudicator has misdirected himself in law by ignoring the 1954 Convention on the Status of Stateless Persons and the provision that is made, within the Immigration Rules, for the principles of the Convention to be followed.

2. The adjudicator has misdirected himself in fact in (1) ignoring the evidence that the appellant is not returnable to any other country, (2) having stated that the appellant has a valid Travel Document the adjudicator ignores the fact that that document is merely a travel facility and gives no right of entry into Egypt."

At the hearing of the appeal Mr McGeachy developed these contentions and drew our attention to provisions of the 1954 Convention relating to the Status of Stateless Persons, ratified by the United Kingdom in 1959 n9. The pertinent provisions are the following:

n9 See footnote 8.

"Article 1. Definition of the term "Stateless Person"

1. For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law.

Article 2. General obligations

Every stateless person has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.

Article 3. Non-discrimination

The Contracting States shall apply the provisions of this Convention to stateless persons without discrimination as to race, religion or country of origin.

Article 31. Expulsion

1. The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.

2. The expulsion of such a stateless person shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

3. The Contracting States shall allow such a stateless person a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary."

Although the Consul-General of Egypt refers to the appellant as "a Palestinian Refugee holding a Travel Document for Palestinian Refugees", there is no suggestion that he is a refugee within the meaning of the Convention relating to the Status of Refugees. We accept that he is a "Stateless Person" as defined in Art 1 of the 1954 Convention relating to the Status of Stateless Persons.

The decision to deport the appellant has been taken in accordance with due process of the law as set out in the Immigration Act 1971 and the relevant immigration rules. The grounds on which the deportation is proposed (overstaying) is a ground for deportation specified in the Act (s 3(5)(a)), the stipulated procedural formalities have been complied with and the appellant has been granted and enjoyed rights of appeal and representation. Control of immigration is necessary for the maintenance of public order. The appellant has had ample time to apply for an entry visa into Egypt, the country whose travel document -- a current one -- he holds, and the Consul-General has indicated that he could be issued with a visa and could seek a job in Egypt together with a work permit. In our judgment the proposed deportation of the appellant and his removal to Egypt in no way runs counter to Art 31 of the Convention.

We do not consider that the fact that the appellant's travel document gives him no permanent right of residence in Egypt precludes directions for his removal to that country. Egypt has assumed responsibility for issuing travel documents to "Palestinian refugees", and the evidence indicates that Egypt is prepared to allow the appellant to return and work there. There is no evidence that the appellant is likely to be shuttled backwards and forwards between countries unwilling to have him on their soil. The appellant cannot, having travelled here under a document issued by the Egyptian Government, a document which is still valid, and having enjoyed limited leave to enter, elect to stay on now that that leave has expired, in defiance of the law. The proposal to give directions for his removal to Egypt, the country which "most recently provided him with a travel document", is in accordance with para 61 of HC 82.

In our judgment, having taken account of the provisions of the relevant international agreement for stateless persons, the respondent's decision was in accordance with the law and relevant immigration rules and his discretion should not have been exercised differently.

DISPOSITION:

Appeal dismissed.