Grenda Gillegao v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1988 |
| Date | 08 November 1988 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
R E Maddison Esq (Chairman) A G Jeevanjee Esq, Miss P G Liverman JP
G Warr for the appellant
A Beasley for the respondent
Cases referred to in the determination:
Birss v Secretary for Justice [1984] 1 NZLR 513.
Lemmington Holdings Ltd v Commissioner for Inland Revenue [1984] 2 NZLR 214.
Kioa and ors v Minister for Immigration and Ethnic Affairs and anr. [1988] Australian LR 321.
R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] Imm AR 352.
R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385.
Takeo (unreported) (5537)
Adjudicator dismissal of appeal request by appellant's representative that a recommendation be made to the Secretary of State to exercise a discretion outside the rules whether an adjudicator was precluded from making such a recommendation if the relevant rules contained no reference to compassionate circumstances or a discretion whether a refusal to make a recommendation was appealable to the Tribunal whether the Tribunal had power to give directions on the making generally of extra-statutory recommendations. Immigration Act 1971 ss. 19(1)(3): Immigration Act 1988 s.5.
The appellant was a citizen of the Philippines. She had worked as a domestic servant in the United Kingdom, but after four years in such posts an application for extension of leave was refused. On appeal to an adjudicator various arguments based on the immigration rules were advanced on her behalf. None found favour with the adjudicator who dismissed the appeal. He had been invited by the appellant's representative, if all else failed, to make a recommendation in favour of the appellant to the Secretary of State, outside the rules. That he declined to do. In that regard he referred to the determination in Takeo (5537) where it was not considered appropriate to make a recommendation where the appeal is concerned with rules which do not refer to compassionate circumstances.
On appeal to the Tribunal it was argued that the adjudicator erred in his interpretation of Takeo. The provisions of the 1988 Act, which had restricted rights of appeal made it more important that in deserving cases, recommendations should be made: there was a danger of unfairness if different adjudicators adopted widely differing approaches to the making of recommendations: the Tribunal should lay down guidelines to be followed. For the Secretary of State it was argued that issues relating to the making of extra- statutory recommendations were not appealable to the Tribunal.
Held:
1. In Takeo the Tribunal had not laid down any general proposition limiting the circumstances in which it might be appropriate to make an extra-statutory recommendation.
2. The Tribunal in any event had no power under the Acts, to give directions to adjudicators on when or how they should make a recommendation when dismissing an appeal.
3. There was no statutory basis on which a failure to make a recommendation alone could ground an appeal to the Tribunal.
4. How and when a recommendation should be made when an appeal was dismissed had to be left to the good sense of adjudicators.
Determination
The appellant is a citizen of the Philippines, born on 20 April 1935. She first arrived in the United Kingdom on 8 August 1980. She came as a domestic servant with an Iranian couple, Mr and Mrs Mozaffari. She was granted leave to enter for two months with her employers. Subsequently she was employed by another Iranian family, the Rastegars, and then as a housekeeper with a Minister at the United States Embassy. That last employment was covered by leave which expired on 8 November 1984. On 18 October 1984 application was made to the Home Office for her to be granted further leave, she intending to marry a Mr F Kaye in the spring of 1985: in the letter of application it was said that until her marriage she intended to continue to work as a children's nanny. At the date of that application she had left the employment with a member of staff of the United States Embassy: she had, unbeknown to the Home Office, begun work as a nanny with a Mr and Mrs Hoomani. The application was initially refused on 19 September 1985. The application for leave to remain was then refused on different grounds in a revised decision dated 11 December 1986.
The first refusal was appealed. After various delays, reviews and the preparation of a supplementary explanatory statement, the appeal, now on the different grounds of refusal was heard by an adjudicator (Mr G S Cobbett). He dismissed it in a determination dated 12 July 1988. On 19 September 1988, after an oral hearing of the application, leave was granted to appeal to the Tribunal.
In the course of the extended history of this case, a variety of matters germane to the appellant's immigration history and status have been canvassed. First, it has been said that the application for variation of leave for marriage in October 1984 was also, separately, an application for variation to remain as a nanny which had not been considered. Secondly, and this was the basis of the first refusal (on 19 September 1985), it was asserted that the appellant was entitled, after four years in approved employment, to a grant of indefinite leave. Thirdly, on the basis of what was claimed to be an illegible stamp in her passport, it was asserted that the appellant had in any event secured indefinite leave to remain. Finally, it was submitted that in the events which had...
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