FB and Others (HC 395 para 284: 'Six months') Bangladesh
| Jurisdiction | England & Wales |
| Judgment Date | 16 March 2006 |
| Neutral Citation | [2006] UKIAT 30 |
| Date | 16 March 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton, Deputy President and Mr G Warr, Senior Immigration Judge
Representation
Mr M A Kalam of Jalalabad Law Associates, for first and second Claimants;
Mr Jaisri instructed by Simmons Solicitors, for the third Claimant;
Mr Y Oluntolu, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
Clayton's Case (1585) 5 Rep la
Dodds v WalkerWLR [1981] 1 WLR 1027
Migotti v ColvillELR (1879) 4 CPD 233
Pearson v Immigration Appeal Tribunal [1978] Imm AR 212
R v Immigration Appeal Tribunal ex parte Nathwani [1979–80] Imm AR 9
R v Secretary of State for the Home Department ex parte HosenballWLR [1977] 1 WLR 766
Legislation judicially considered:
Immigration Act 1971, s 3C
Immigration Rules HC 395 (as amended), Rule 284
Immigration — leave to remain — Rule 284 of the Immigration Rules — meaning of ‘six months’
The first and second Claimants were in possession of entry clearance as visitors for six months, which had effect as leave to enter the United Kingdom. The third Claimant had been granted leave to enter the United Kingdom for six months. All three Claimants applied for leave to remain as spouses. The applications of the first and second Claimants were governed by Rule 284 of the Immigration Rules HC 395 (as amended), as substituted by Cm 5949;1 the application of the third Claimant was governed by Rule 284 of the Immigration Rules, as amended by HC 538.2 The applications of all three Claimants were refused on the ground that they had not fulfilled the requirement imposed by the Immigration Rules that their limited leave be of more than six months duration. The first Claimant was granted permission to appeal to the Immigration Appeal Tribunal (‘IAT’) against the decision of an Adjudicator dismissing her appeal against the Secretary of State for the Home Department's decision. This grant took effect as an order for reconsideration by the Asylum and Immigration Tribunal (‘AIT’). The second Claimant was granted an order for reconsideration by the AIT after her appeal was dismissed by an Immigration Judge. The Secretary of State was granted permission to appeal to the IAT against the decision of an Adjudicator allowing the third Claimant's appeal. This grant took effect as an order for reconsideration by the AIT.
Held, substituting fresh decisions allowing the Claimants' appeals and directing that the Secretary of State continue his consideration of each application on the basis that the requirements of Rule 284(1) were met:
(1) six months had to be interpreted as six calendar months, in accordance with the Interpretation Acts (para 37);
(2) one calendar month was to be calculated from the first day to the day numerically corresponding to that day in the following month less one: Migotti v ColvillELR (1879) 4 CPD 233 applied; in calculating a period of leave to enter neither the first day nor the last day could be excluded; all Claimants had been granted leave of six months and one day, which was a period of more than six months; in the case of the third Claimant this was sufficient to show that the decision was not in accordance with the Immigration Rules as she was not excluded under Rule 284 (para 44);
(3) the phrasing of Cm 5949 was materially different in its effect from that of HC 538; HC 538 looked at the total period of leave but Cm 5949 looked at the extent to which the period of leave stretched beyond the date of admission; in calculating the period that elapsed after admission, the day of admission was to be ignored, even though it was also a day of leave: Dodds v WalkerWLR [1981] 1 WLR 1027 applied; insofar as the first and second Claimants relied on the grants of initial leave, which did not extend beyond six months from the date of admission, they failed to meet the requirements of Rule 284 of the Immigration Rules, as substituted by Cm 5949 (paras 45–46);
(4) by operation of s 3C of the Immigration Act 1971, as substituted from 1 April 2003, all Claimants still had leave, as the leave they had at the time of their application had been extended to cover the time of any appeal; accordingly, the first and second Claimants met the requirements of Rule 284, as substituted by Cm 5949 (paras 48–49);
(5) the issue decided in these appeals related only to decisions made between 1 April 2003, when HC 538 came into effect and 1 October 2004, when Cm 6339 came into effect (para 52);
(6) in the case of decisions made after 1 October 2004, whatever the period of leave actually given to a visitor, his leave under the Rules was limited to six months (para 51).
Determination and Reasons
C M G Ockelton, Deputy President
The Issue
[1] How long is six months? Or rather, is a period of time beginning on a date in one month and ending on the date bearing the same number in the sixth month thereafter a period of ‘six months' duration or less’? And does such a period extend ‘beyond six months’ from the date on which it begins?
[2] The question arises because of the terms of paragraph 284 of the Immigration Rules, HC 395, which sets out the requirements for an extension of stay as the spouse of the person present and settled in the United Kingdom. The first of the requirements, in the form in which it had effect from 1 April 2003 (when it was amended by HC 538) until 25 August 2003 (when it was amended by Cm 5949), was as follows:
‘(i) The applicant has limited leave to enter or remain in the United Kingdom, other than where that limited leave is of six months' duration or less.’
(The amendment made by HC 538 was the insertion of the words in italics.) From 25 August 2003, the form was as follows:
‘(i) The applicant has limited leave to enter or remain in the United Kingdom other than where as a result of that leave he would not have been in the United Kingdom beyond six months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these rules, unless the leave in question is limited leave to enter as a fiancé.’
That requirement was itself amended by Cm 6339 by the addition of the words ‘which was given in accordance with any of the provisions of these rules’ before the words ‘other than’ with effect from 1 October 2004.
Entry Clearance and leave to enter
[3] In the course of this determination we shall have to consider the process by which the Appellants were granted leave to enter the United Kingdom. For clarity's sake, it may therefore be appropriate to set out the general principles relating to entry clearance and leave to enter.
[4] The principal statutory provision relating to leave to enter is s3(1) of the Immigration Act 1971, as amended by the British Nationality Act 1981 and the Asylum and Immigration Act 1996:
‘3(1) Except as otherwise provided by or under this Act, where a person is not a British citizen—
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, 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 limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—
(i) a condition restricting his employment or occupation in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and
(iii) a condition requiring him to register with the police.’
[5] By s 4 of the 1971 Act and associated provisions in Schedule 2, leave to enter is granted by Immigration Officers, who are officers of the Secretary of State for the Home Department.
[6] Before the coming into force of the Immigration and Asylum Act 1999, there was a clear demarcation between leave to enter, obtained from an Immigration Officer, and entry clearance, obtained from a British post abroad. The Immigration Rules provide that persons of certain nationalities (listed in appendix 1 to the Rules) require entry clearance in the form of a visa as a precondition to their being granted leave to enter. The Rules also provide that leave to enter for certain purposes will not be granted unless entry clearance has been obtained. The administration of entry clearance is by Entry Clearance Officers or Visa Officers, who are officers of the Secretary of State for Foreign and Commonwealth Affairs. Thus, a person who is a national of one of the specified countries or who seeks entry for one of the specified purposes must first present himself at his local Embassy or High Commission and obtain entry clearance or a visa: without it he will not be admitted and, indeed, will not be carried by any reputable airline. On arrival (under the scheme as it was before the 1999 Act) he presented his entry clearance and formally sought leave to enter. The holder of a valid entry clearance who was for any reason refused leave to enter on the strength of it had an incountry right of appeal against of the refusal of leave to enter. It was for that reason that entry clearance was sometimes sought and obtained by those who had no need to have it, because the possession of entry clearance gave at least a right to be physically present in the United Kingdom during the course of any appeal against refusal of leave to enter, and so might well ensure that a travel ticket would not have been bought and used in vain.
[7] The strict separation between entry clearance and leave to enter ceased on 14 February 2000 when provisions of the 1999 Act came into force, inserting a new s3A into the 1971 Act. This section reads in part as follows:
‘3A(1) The Secretary of State may by order make further provisions with respect to the giving, refusing or...
To continue reading
Request your trial
-
EL (Jamaica) v Secretary of State for the Home Department
...Immigration Act 1971 as amended, which, as interpreted by the Asylum and Immigration Tribunal in FB and others v The Secretary of State [2006] UKIAT 00030, provides for continuation of limited leave to enter or remain pending a variation decision where an application for such a decision is ......