Dawood Mohd Patel v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 23 April 1990 |
| Date | 23 April 1990 |
| Court | Immigration Appeals Tribunal |
Immigration Appeals Tribunal
Professor D C Jackson (Vice-President) Mrs J M Abrahams JP, P Rogers Esq JP
A Adedipe of the Joint Council for the Welfare of Immigrants for the appellant
A Cunningham for the respondent
Cases referred to in the determination:
Associated Provincial Picture Houses v Wednesbury CorporationELRUNK [1948] 1 KB 223; [1947] 2 All ER 680.
R v Immigration Appeal Tribunal ex parte Martin [1972] Imm AR 275.
R v Secretary of State for the Home Department ex parte Husbadak [1982] Imm AR 8.
Attorney-General of Hong Kong v Ng Yuen ShiuELRUNK [1983] 2 AC 629: [1983] 2 All ER 346.
Lars Olaf Wirdestedt v Secretary of State for Home Affairs (of 6 December 1984) [1990] Imm AR 20.
Asif Mahmood Khan v Immigration Appeal TribunalUNK [1984] Imm AR 68: [1985] 1 All ER 40.
Sonia Mahli v Secretary of State for the Home Department [1990] Imm AR 275.
Aujla (6459) (unreported).
Balluza (6579) (unreported).
Permit-free employment legitimate expectation ministerial letter to Member of Parliament requirement that applicants for permit-free employment should hold entry clearance special considerations were to apply to ministers of religion subsequent change of policy by Secretary of State whether in the events which had happened the appellant had a legitimate expectation founded on the earlier policy that he would be granted variation of leave to remain in the United Kingdom. HC 169 paras. 31, 100.
Jurisdiction immigration appellate authorities whether the appellate authorities had jurisdiction to determine whether a refusal to depart from the rules was in accordance with the law. Immigration Act 1971 ss. 19, 20.
The appellant was a citizen of India who was admitted to the United Kingdom as a visitor. Application was subsequently made for his leave to be varied to allow him to remain as a priest. The application was refused. The Secretary of State based the refusal on the requirement in the rules that ministers of religion albeit coming for permit-free employment required entry clearance, issued for that purpose.
When that entry clearance requirement was introduced the appellant's representatives had corresponded generally with the Home Office and had received an indication how a special policy would be applied in certain circumstances. By 1987, and before the date of decision in this instant case, the policy of the Home Office had altered in some material respects.
On appeal, an adjudicator held that the application for variation of leave had, on the facts, been a request to the Secretary of State to depart from the rules: he concluded he was precluded from reviewing that decision.
On appeal to the Tribunal it was argued that the adjudicator had misdirected himself in law: furthermore the appellant on the basis of the earlier correspondence between the Home Office and the Joint Council for the Welfare of Immigrants, had had a legitimate expectation that his application would be granted.
Held:
1. Where an adverse decision relied on the rules, it was impossible to argue that the decision was other than a refusal to depart from the rules.
2. The exercise of discretion embodied in a refusal to depart from the rules was not appealable before the immigration appellate authorities on the merits.
3. That however did not exclude from the jurisdiction of the immigration appellate authorities consideration of whether the decision was in accordance with the law.
4. On the facts however the early correspondence between the Home Office and the Joint Council for the Welfare of Immigrants could not have given rise to any legitimate expectation in the mind of the appellant.
5. In the events which had happened, the application of criteria other than those set out in that correspondence, to the appellant's application, was not unfair.
Determination
The appellant, a citizen of India, appeals against a decision of an adjudicator (Mr R G Care) dismissing his appeal against the refusal of the Secretary of State to vary his leave to remain in the United Kingdom.
The issues before us are whether:
(i) in the circumstances of the case, the Secretary of State refused to depart from the immigration rules within the meaning of section 19(2) of the Immigration Act 1971or did so depart and then refused the application;
(ii) if the Secretary of State did not refuse to depart from the rules, the appellate authorities have any jurisdiction to review the decision;
(iii) if the Secretary of State did refuse to depart from the rules, the appellate authorities have any power to review the decision;
(iv) if there is some power to review the decision, there is any ground within the jurisdiction of the appellate authorities on which it can be said to be wrong.
The applicable provisions of the Immigration Act 1971 and the immigration rules (HC 169)
The appellant's application was refused under HC 169 paragraph 100 which (inter alia) provides that (with exceptions not relevant):
an application to remain for a purpose for which an entry clearance is required under Section One of these rules from a person who was not admitted with such an entry clearance is to be refused.
It is common ground that the purpose for which leave to remain was sought was one for which an entry clearance is required on entry (HC 169 paragraph 31(a)).
The jurisdiction of the appellate authorities is set out in sections 19, 20 of the Immigration Act 1971. Section 19 applies to adjudicators and is applied to the Tribunal by section 20. So far as relevant, section 19 reads:
19(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act
(a) shall allow the appeal if he considers
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and
(b) in any other case, shall dismiss the appeal.
(2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.
The relevant facts
It was agreed by Mr Adedipe and Mr Cunningham that were we to be in favour of the appellant, the matter must be remitted to the Secretary of State to consider an application which, in substance, would still be pending. We are therefore concerned with the facts only insofar as they raise the question of the principles to be applied in considering the application.
It is common ground that the appellant arrived in this country on 27 April 1986. He was given two months leave as a visitor. The visit leave was extended until 20 November 1986.
On 4 November 1986 the President of the Evington Muslim Centre wrote that his committee had decided subject to immigration clearance to employ Mr Patel, he being a qualified Muslim priest.
On 19 August 1987, the Home Office replied with a series of questions concerning Mr Patel's background, what he had told the immigration officer on entry, the circumstances in which the post became vacant and why Mr Patel was considered and offered the post. On 27 October 1987 the Joint Council for the Welfare of Immigrants replied on behalf of the Evington Muslim Centre. On 5 April 1988 the application was refused, the notice of refusal reading:
The Joint Council for the Welfare of Immigrants have applied on your behalf for further leave to remain in the United Kingdom as a Minister of Religion. However, this is a purpose for which an entry clearance is required and you were not admitted with such an entry clearance.
A notice of appeal was lodged by the Joint Council for the Welfare of Immigrants, reading:
The decision is wrong in law as the Home Office has failed to consider the application outside the immigration rules in...
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