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Suthendran v Immigration Appeal Tribunal
HOUSE OF LORDS
Hearing Date: 26th, 27th JULY, 27th OCTOBER 1976
27 October 1976
Index Terms:
Immigration - Deportation - Expiration of leave to remain in United Kingdom - Variation of leave - Refusal of application to vary leave - Appeal pending - Applicant not to be deported so long as appeal pending - Applicant who has a limited leave to enter or remain in the United Kingdom - Applicant's leave having expired before application made for further period of leave - Whether applicant immune from deportation until application determined and appeal procedure exhausted - Immigration Act 1971, s 14(1).
Held:
The appellant, a non-patrial, was granted leave to enter the United Kingdom and to remain for 12 months, on condition that he did not enter any employment. On 23rd July 1973 the appellant entered the United Kingdom in order to study at a technical college. He did not attend the college but instead obtained work. In June 1974 he became a nursing assistant at a hospital and on 23rd July 1974 the hospital applied for a work permit for him. That application was refused by the Secretary of State and on 13th May 1975 the appellant's appeal under s 14(1) a of the Immigration Act 1971 was dismissed by an adjudicator. On 20th May the hospital asked that the appellant should be allowed to remain in order to complete his training as a pupil nurse. On 17th june the Secretary of State refused that application and gave the appellant leave to remain until 17 th July 'for the purpose only of enabling [him] to make arrangements to leave'. On 18th June the appellant's application for leave to appeal against the dismissal of his appeal by the adjudicator was refused by the Immigration Appeal Tribunal. On 16th January 1976 an adjudicator allowed the appellant's appeal agains the Secretary of State's decision on 17th June 1975, but in June 1976 his decision was reversed by the tribunal which allowed an appeal by the Secretary of State on the ground that, since the appellant's limited leave and expired on 23rd July 1974 he was not, within s 14(1) of the 1971 Act, 'a person who has a limited leave' and therefore did not have a right of appeal under s 14(1) to the adjudicator. The appellant applied for an order of certiorari to quash the tribunal's decision, contending that the words's person who has a limited leave' meant anyone who has been given limited leave to enter the United Kingdom, even though the period of leave had subsequently expired. a Section 14(1) is set out at p 613 e, post Held (Lord Wilberforce and Lord Kilbrandon dissenting) - The words 'a person who has a limited leave' in s 14(1) applied only to a person who at the time he lodged his appeal was lawfully in the United Kingdom. There was nothing in s 14(1) or the other provisions of the 1971 Act which required or indicated that the word 'having' should be read as 'having had', and accordingly, if an application to vary a limited leave were refused after the leave had expired, the applicant would have no right of appeal. The Secretary of State had no powers in inrelation to a person whose limited leave had expired before making an application, although he could grant a new leave to remain. Since the appellant's application was made nearly a year after his limited leave had expired, his purported appeal from the refusal to vary it had no standing and the appellant for certiorari would accordingly be refused (see p 615 b to e and g to p 616 f and p 619 e to h, post). R v Immigrant Appeal Tribunal, ex parte Subramaniam p 604, ante, approved in part.Notes:
For appeals by immigrants against conditions of entry or stay, see 4 Halsbury's Laws (4th Edn) para 1018. For the Immigration Act 1971, s 14, see 41 Halsbury's Statutes (3rd Edn) 35.Cases referred to in the Judgment:
Becke v Smith (1836) 2 M & W 191, 2 Gale 242, 6 LJEx 54, 150 ER 724, 44 Digest (Repl) 213, 270. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, [1975] AC 591, [1975] 2 WLR 513, [1975] 2 Lloyd's Rep 11, HL, Digest (Cont Vol D) 108, 1591a. R v Immigration Appeal Tribunal, ex parte Subramaniam p 604, ante, [1976] 3 WLR 630, CA; affg [1976] 1 All ER 915. R v Inhabitants of Banbury (1834) 1 Ad & El 136, 3 Nev & MKB 292, 2 Nev & MMC 210, 3 LJMC 76, 110 ER 1159, 31(2) Digest (Reissue) 870, 7216.Introduction:
Appeal. Jayaratnam Suthendran appealed pursuant to leave granted on 7th July 1976 by the appeal committee of the House of Lords against the decision of the Court of Appeal (Lord Denning MR, Orr and Waller LJJ) dated 25th June 1976 whereby they dismissed the appellant's application for an order of certiorari to quash the determination of the Immigration Appeal Tribunal ('the tribunal') given on 4th June allowing an appeal by the Secretary of State for Home Affairs against a decision of an adjudicator (W Parker Esq) on 16th January whereby he allowed the appellant's appeal against the Secretary of State's refusal on 17th June 1975 to vary the appellant's leave to remain in the United Kingdom. The facts are set out in the opinion of Viscount Dilhorne.Counsel:
Anthony Scrivener QC and Michael Beloff for the appellant. Harry Woolf for the tribunal.Judgment-READ:
Their Lordships took time for consideration. 27th October. The following opinions were delivered. PANEL: LORD WILBERFORCE, VISCOUNT DILHORNE, LORD SIMON OF GLAISDALE, LORD KILBRANDON AND LORD RUSSELL OF KILLOWENJudgment One:
VISCOUNT DILHORNE. My Lords, the Immigration Act 1971 regulates the entry into and stay in the United Kingdom of persons who do not have the right of abode in the United Kingdom. That right may be acquired by a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last years or more (s 2(1)(c) . The power of give or to refuse leave to enter the United Kingdom is exercised by immigration offiucers and the power to give leave to remain in the United Kingdom or to vary any leave to remain in the United Kingdom (whether as regards duration or conditions) by the Secretary of State (s 4(1)). A would-be immigrant refused leave to enter may appeal to an adjudicator against a decision that he requires leave or against the refusal of leave (s 13(1)). Section 14 deals with appeals against conditions and s 14(1) reads allows:'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave.'
From the decision of an adjudicator an appeal lies to the Immigration Appeal Tribunal only with the leave of the adjudicator or of the tribunal (s 20(1), and the Immigration Appeals (Procedure) Rules 1972 n2, r 14). n2 SI 1972 No 1684 The appellant, a citizen of Sri Lanka, obtained a certificate giving him leave to enter the United Kingdom and to remain here for the period of 12 months on condition that he did not enter any employment or engage in any business or profession. The certificate was granted to him to enable him to take a course at the South-East London Technical College in engineering. He entered the United Kingdom on 23rd July 1973 so, unless the leave granted to him was extended, he ceased to be entitled to be in this country on 23rd July 1974. He did not attend the technical college on any occasion and in breach of the condition obtained employment by Selfridges and by Night Security Ltd. On 2nd June 1974 he began work as a nursing assistant at the Princess Marina Hospital, Northampton. On 23rd July 1974 that hospital applied for a work permit for him. That application was refused by the Secretary of State. He appealed and on 13th May 1975 the adjudicator dismissed his appeal. The appellant sought leave to appeal to the tribunal, but on 18th June that was refused. On 20th May, a week after his appeal to the adjudicator had been dismissed, the hospital asked that the appellant should be allowed to remain at the hospital to complete his training as a pupil nurse. On 17th June the Secretary of State refused that application and notified the appellant that --'For the purpose only of enabling you to make arrangements to leave this country your leave to enter is varied so as to permit you to remain in the United Kingdom until 17th July 1975. No further extension of stay will be granted.'
The appellant appealed to the adjudicator against this refusal and on 16th January 1976 his appeal was allowed. From this decision the Secretary of State obtained leave to appeal and on 4th June 1976 his appeal was allowed by the tribunal on the ground that as the appellant's limited leave to remain in the United Kingdom had expired on 23rd July 1974, he had had no right to appeal from the Secretary of State's refusal to the adjudicator. The appellant then applied for leave to apply for an order of certiorari to quash the decision of the tribunal. Leave was refused by the Court of Appeal and now the appellant appeals to this House with the leave of the House. The appellant, not having the right of abode in the United Kingdom, could only --'live, work and settle in the United Kingdom by permission and subject to such regulation and control of [his] entry into, stay in and departure from the United Kingdom as is imposed by this Act...'
(s 1(2)). In this subsection it is to be noted 'entry' is treated as distinct from staying in this country. Section 3(1) provides:'Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restructing his employment or occupation in the United Kingdom, or requiring him to register with the police, or both.'
It is one instance of the less than felicitous drafting of the 1971 Act that in s 3(1)(b) the distinction drawn between entry into and staying in this country is blurred. Leave to enter is one thing. Permission to remain here for a definite or indefinite period is another. In s 3(1)(b) 'leave to enter... either for a limited or for an indefinite period must be interpreted as meaning leave to enter and to remain. 'Limited leave to enter or remain' appears in s 3(1)(c) and in s 14(1) and 'limited leave' is defined in s 33 as meaning 'leave under this Act to enter or remain in the United Kingdom which is... limited as to duration'. From the date when the 1971 Act came into operation until the decision of the Divisional Court on 25th February 1976 in R v Immigration Appeal Tribunal, ex parte Subramaniam n1, the Home Office regarded s 14(1) as entitling a person who had had a limited leave to enter or remain here to appy for a variation of the duration for which that leave was granted even had expired; and regarded it as within the Secretary of State's power to grant or to refuse such an application. The letter of 17th June 1975 to which I have referred is an instance of the Secretary of State acting in this belief. n1 [1976] 1 All ER 915, [1976] 3 WLR 630 In that case the Divisional Court n1 (Lord Widgery CJ, Kilner Brown and Watkins JJ) held, as was contended by counsel for the Secretary of State, that the phrase in s 14(1) 'a person who has a limited leave under this Act' was not wide enough to include 'someone who did have a limited leave' under the Act 'but no longer has'. The Court of Appeal n2 (Lord Denning MR, Ormrod and Bridge LJJ) dismissed the appeal from this decision. The question now to be decided is whether that decision of the Divisional Court was right. n2 Page 604, ante, [1976] 3 WLR 630 I propose first to consider s 14(1) by itself and then to consider whether the wording of other provisions of the 1971 Act leads me to a different conclusion to that to which I would come on consideration of s 14(1) alone. It gives a right of appeal against any variation of the leave granted whether as to its duration or the conditions to which it was subject, and such a variation may be made by the Secretary of State on his own initiative (s 3(3)(a)). It gives a right of appeal against a variation and against a refusal to vary but only a person 'who has a limited leave' is entitled to appeal. These words, read literally, apply only to a person who is at the time he lodges his appeal lawfully here. If he remains here after the period for which he had leave to be here, he is not lawfully here and no semantic subtlety can justify the conclusion that a person who had leave to be here but who no longer has and who is here unlawfully is a person who has limited leave under the Act. Leave may be granted, as I have said, subject to conditions. Those conditions are contended to apply during the currency of the leave. There can be no point in giving a right to vary the conditions subject to which leave was given when that leave has expired and there is no permission in force to which those conditions can apply. If Parliament had intended to give a right of appeal to someone who had had a limited leave but whose leave had expired, it would have been easy so to provide by the insertion of the words 'or had' after 'has' in s 14(1). Parliament did not do so and, despite the fact that the Home Officer at one time construed the subsection as if it had included the words 'or had', I see nothing in s 14' to support any inference that Parliament had any such intention. Consideration of this section leads me to the conclusion that Bridge LJ was right when he said in R v Immigration Appeal Tribunal, ex parte Subramaniam n1: 'Once a limited leave to enter has expired, there is nothing left to which an application to vary can sensibly relate'. I see nothing in s 3(3) which points to any other conclusion. n1 Page 609 ante Section 3(5) provides that a person who is not a patrial shall be liable to deportation --'if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave...'
and s 24(1) provides that a person not a patrial commits an offence --'(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either -- (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave...' Neither of these provisions can be said to be well drafted. 'Having only a limited leave... remains beyond the time limited by the leave' requires the sentence to be construed as if it had said 'Having had a limited leave'.
It was argued that if 'having in these subsections had to be construed as meaning 'having had', then 'having' in s 14(1) should be similarly construed. I do not think so. In both these subsections the context clearly shows that for them to operate, 'having' must be read as including 'having had'. I see nothing in s 14(1) that requires or indeed indicates that a similar inference should be drawn. It would indeed be suprising to me if a person not a patrial who was liable to deportation and to prosecution for remaining in this country beyond the period for which he had expired against a refusal to extend it. If s 14(1) applied to such a person, proceedings for deportation would by virtue of that subsection be held up so long as the appeal was pending. It was pointed out in argument that though a person who had a limited leave might apply for its extension during the currency of his leave, the refusal of his application might not occur until after his leave had expired, in which case on this construction of s 14(1) he would not have a right of appeal. I accept that this could happen. It did not happen in this case. If it did happen the person concerned would have a legitimate grievance. Failure to provide for this possibility is a flaw in the 1971 Act, but the existence of this flaw does not in my opinion justify reading s 14(1) so as to give all those who had leave to be in this country, but whose leave has expired and who are consequently illegally here, a right of appeal against a refusal to extend the period for which leave was granted, however long ago it was that that period expired. I repeat there is nothing in s 14 as there is in ss 3(5) and 24(1) to indicate that any meaning other than the literal one has to be given to the word 'has'. To read that word in that subsection as meaning 'has or had' might well be ascribing to Parliament an intention quite contrary to that which Parliament in fact had and would in my view not be interpreting the language of a statute, but, to remedy a flaw in the 1971 Act, encroaching on the province of the legislature. If a case occurs when the Secretary of State's decision is given after have has expired though the application to vary was made during the currency of the leave, there is nothing so far as I can see to stop the Secretary of State from granting the applicant leave to remain in this country for a period sufficient to enable him to lodge his appeal. Such a grant would bring the applicant within s 14(1). I recognise that the consequence of the Secretary of State doing this would give the applicant a right to apply for an extension of the leave granted and to appeal if that is refused, but that does not seem to me of great moment if the application was made during the currency of the leave first granted. I see nothing in the other provisions of the 1971 Act to lead me to the conclusion that the view I formed on conclusion of s 14(1) by itself is wrong; so, in my opinion, the appellant whose leave to be here expired on 23rd July 1974 was not entitled to appeal against the Secretary of State's decision of 17th June 1975 to refuse the application made on his behalf on 20th May 1975. In my view the decisions of the Divisional Court n1 and of the Court of Appeal n2 in R v Immigration Appeal Tribunal, ex parte Subramaniam were right and this appeal should be dismissed. n1 [1976] 1 All ER 915, [1976] 3 WLR 630 n2 Page 604, ante, [1976] 3 WLR 630Judgment Two:
LORD SIMON OF GLAISDALE. My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Viscount Dilhorne and Lord Russell of Killowen. I agree with them, and I would therefore dismiss the appeal. Parliament is prima facie to be credited with meaning what is said in an Act of Parliament (see Parke B in R v Inhabitants of Banbury n3). Section 14(1) of the Immigration Act 1971 gives a right of appeal to 'a person who has a limited leave under this Act', not to 'a person who has had' such limited leave, nor to 'a person who at the time of applying for a variation has' such limited leave. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. n3 (1834) 1 Ad & El 136 at 142 Of course, Parliament is to be cridited with good sense; so that where such an approach produces injustice, absurdity, contradition or stultification of statutory objective, the language may be modified sufficiently to avid such disavantage, though no further (per Parke B in Becke v Smith n4; also R v Inhabitants of Banbury n3). Section 14(1), if it means what it says, could produce injustice if limited leave runs out while the Secretary of State has the application for variation still under consideration. But possible administrative means of obviating any such injustice come readily to mind. It would be wrong to proceed on the assumption that the Secretary of State would act appressively; and, in any case, Parliament has clearly demonstrated an intention to keep the statutory procedures under close scrutiny (see s 3(2)). The appeal procedure of the Immigration Act 1971 largely followed the recommendations of the report of the Wilson Committee on Immigration Appeals. n1 This report would be an admissible aid to construction for the purpose of identifying the 'mischiefs' requiring statutory remedy (Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG n2). Neither side referred to the report, since in fact it throws no light on the problem before your Lordships. I mention it only so that your Lordships may be assured that no aid to interpretation has been gratuitously neglected.Judgment Three:
LORD RUSSELL OF KILLOWEN. My Lords, the Immigration Act 1971 provides means by which leave or permission to be in the United Kingdom may be given to non-patrials such as the appellant whose presence without such leave would be illegal. The leave may be for an indefinite period or for a limited period, and in the latter case may be made subject to conditions restructing employment or occupation or requiring registration with the police. The leave may be to enter and implicitly, having entered, to remain. In the case of a relevant person already in the United Kingdom without a subsisting or current leave, there is power to give him leave to remain, which also may be limited leave or for an indefinite period. For all this see s 3(1). Section 3(3) concerns cases of limited leave to enter (and remain) or to remain. So far as presently relevant it provides:'In the case of a limited leave to enter or remain in the United Kingdom... a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions...' In my opinion, this provision is not applicable to a limited leave which has expired and no longer has any operation: the Secretary of State has no powers in relation to such a former limited leave. He has in such a case a power to give de novo a leave to remain, and in the case of an application to vary an expired limited leave by extension he will no doubt treat the application as an application for the grant of leave to remain; though I observe that there is no right of appeal from a refusal to grant such leave to remain. The opinion expressed in this paragraph is fatal to the appeal: for the appellant's limited leave to enter (and remain) had expired long before even his application to vary it by extension was made. Accordingly, his purported appeal to an adjudicator under s 14(1) from a refusal to vary had no standing, there being no power in the Secretary of State to vary the defunct limited leave.
The language of s 14(1) appears to me to fit with the language of s 3(3). In Subramaniam's case n1 the Court of Appeal found itself able to construe s 14(1) as though it said that 'a person who at the time of applying for a variation has a limited leave... may appeal'. I would not in any event as I have indicated, contrary to the view which was entertained in the department, the crucial question is whether there is at the time for decision (whether to vary of refuse) a current leave to be in the country. n1 Page 604, ante, [1976] 3 WLR 630 This view may give rise to administrative difficulties, which may, however, be capable of solution without legislation. These difficulties may arise from the time factor: a limited leave to enter may be of too short a duration for an application for variation to be properly processed by the department before the limited leave expires, or the immigrant may apply late with the same result. In such cases the application can no doubt be treated as an application for leave de novo to remain, but there is no provision for appeal from a refusal of such an application. It is perhaps for consideration whether such cases could be met by a prompt interim extension of the original leave for a period to expire 15 days from the decision on the application (provision is made for appeal within 14 days); though it may be that such interim decision would itself be technically appealable. The document dated 7th June 1975 by which the Secretary of State purported to refuse the appellant's expired limited leave to enter contained also this phrase:'For the purpose only of enabling you to make arrangements to leave this country your leave to enter is varied so as to permit you to remain in the United Kindom until 17th July 1975. No further extension of stay will be granted.'
This well-intentioned phrase could, it appears to me, have operated as a grant de novo of a limited leave to remain, and had the appellant though of it he might have promptly applied to vary that limited leave; the obviously equally prompt refusal of that application would have entitled him to appeal from it. But he made no such application, and by no stretch of the imagination can his purported appeal under s 14(1) be regarded as an appeal from a notional refusal of a notional application to vary that one month limited leave to remain. It would, however, be wiser to meet such a case by indicating that while not giving leave to remain the Secretary of State did not propose for (say) one month to initiate deportation procedures so that the applicant should have time to arrange his affairs. I have not, my Lords, entered into any discussion of the facts of this case. But I would not wish it to be though that the appellant has been hardly done by because the department, erroneously (as I hold) in law, intimated to him that an appeal lay under s 14(1) from the refusal of the Secretary of State. For these reasons I would dismiss this appeal.