Marissa Cantos Musico v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Peter Jackson,Lord Justice Underhill |
| Judgment Date | 28 October 2020 |
| Neutral Citation | [2020] EWCA Civ 1389 |
| Date | 28 October 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2019/1403 |
[2020] EWCA Civ 1389
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE RIMINGTON
Appeal No. IA/33837/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Peter Jackson
and
Lord Justice Lewis
Case No: C5/2019/1403
Mr James Collins (instructed by Douglass Simon Solicitors) for the Appellant
Ms Jennifer Gray (instructed by the Government Legal Department) for the Respondent
Hearing date: 20 October 2020
Approved Judgment
INTRODUCTION
This is an appeal against a decision of the Upper Tribunal given on 14 May 2019. The Upper Tribunal held that a decision of the respondent dated 25 April 2014 refusing the appellant leave to remain in the United Kingdom was not an immigration decision within the meaning of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Consequently, the appellant had no right of appeal against the 25 April 2014 decision.
In summary, the appellant sought to come to the United Kingdom in 2009 to work as a domestic worker at the Lebanese Ambassador's residence in the United Kingdom. An entry clearance officer in the Philippines concluded that the appellant was exempt from immigration control and stamped her passport as visa exempt. The exemption was to last until the expiry of her passport on 8 January 2014. The Upper Tribunal held that the entry clearance officer was correct in classifying the appellant as exempt from immigration control in 2009. The Upper Tribunal held, however, that by 16 August 2013 at the latest the appellant's circumstances had changed and she was no longer employed by the Lebanese Embassy but was employed by the Ambassador personally. The appellant, therefore, ceased to be exempt from immigration control. Thereafter the appellant was treated as having leave to remain for 90 days pursuant to section 8A of the Immigration Act 1971 (“the 1971 Act”). That leave had expired by the end of December 2013 at the latest. The appellant did not, therefore, have any subsisting leave to remain when she applied for leave on 12 March 2014. As a result, the 25 April 2014 decision refusing leave to remain was not an appealable immigration decision as it was not a decision refusing to vary leave to enter or remain.
The appellant submits that the Upper Tribunal erred in holding that the entry clearance officer had correctly classified her as exempt in 2009 and that, subsequently, her circumstances changed with the consequence that she ceased to be exempt from immigration control. Rather, the position was that the entry clearance officer had mistakenly granted her exempt status which was to last until the expiry of her passport on 8 January 2014. That was a mistake on the part of the entry clearance officer and the appellant had not misled him in any way. In those circumstances, the appellant submitted that she was entitled to be treated as exempt until the expiry of her passport on 8 January 2014 and to be treated as having 90 days leave to remain thereafter. Consequently, she submits that the 25 April 2014 decision did amount to a refusal to vary her existing leave to remain and was an immigration decision against which she had a right of appeal by virtue of section 82(2)(d) of the 2002 Act.
THE LEGAL STRUCTURE
The 1971 Act sets out a framework governing immigration control for those seeking to enter and remain in the United Kingdom. Section 3(1) of the 1971 Act provides that:
“(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…..”.
Exemptions from Immigration Control
Provision is made for the Secretary of State to exempt by order any person from any of the provisions of the 1971 Act: see section 8(2). Further, there is provision for the exemption of members of a diplomatic mission (and family members who are part of their household) and administrative, technical and service staff employed by the diplomatic mission. Section 8(3) of the 1971 Act provides that:
“(3) Subject to subsection (3A) below, the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent.”
Section 8A of the 1971 Act deals with persons ceasing to be exempt and provides, so far as material, that:
“8A.—Persons ceasing to be exempt.
(1) A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8( 2) or (3).
(2) If a person who is exempt—
(a) ceases to be exempt, and
(b) requires leave to enter or remain in the United Kingdom as a result,
he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt.
(3) If—
(a) a person who is exempt ceases to be exempt, and
(b) there is in force in respect of him leave for him to enter or remain in the United Kingdom which expires before the end of the period mentioned in subsection (2),
his leave is to be treated as expiring at the end of that period.”
Domestic Workers in a Diplomatic Household
The relevant immigration rules provide for the grant of leave to enter or remain for certain categories of workers including domestic workers in diplomatic households. These are persons employed by diplomats personally (not persons employed by the diplomatic mission itself who are exempt from immigration control). This category includes domestic workers employed by an ambassador to work in the ambassador's residence. Since November 2008, those rules have been contained within the provisions of Tier 5 (Temporary Worker) of the Points Based System.
Domestic Workers in a Private Household
Paragraphs 159B to 15EB(i) of the Immigration Rules provide for leave to enter and remain for domestic workers in a private household. These would include persons employed to work for private citizens such as businessmen or women.
Rights of appeal
At the time of the appeal to the First-tier Tribunal in this case, section 82 of the 2002 Act conferred rights of appeal against certain specified immigration decisions (the provisions of section 82 have now been amended). The material provisions of section 82 then applicable provided that:
“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this part “immigration decision” means –
…..
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain
…..”.
THE FACTS
The application for entry clearance
The appellant is a national of the Philippines who was born on 11 June 1980. She made an application to an entry clearance officer in the Philippines with a view to being able to come to the United Kingdom to work as a domestic worker at the residence of the Lebanese Ambassador to the United Kingdom.
The entry clearance officer concluded that the appellant was exempt from immigration control by reason of section 8 of the 1971 Act. Her passport was accordingly stamped “Visa exempt”. The exemption was to last until her passport expired on 8 January 2014.
No copy of the application itself is available. There is a record of the details contained in the application and of the entry clearance officer's understanding of the position. That record notes that the appellant is:
“To work in Lebanese Ambassador's residence as a domestic – gets exempt visa for up to 5 years – see extract from DSP – have given her to the end of her [passport] validity which is just under 5 years as no end of contract date given”.
The record notes that the sponsor was the Embassy of the Lebanon.
The appellant's arrival in the United Kingdom.
The appellant came to the United Kingdom on 16 April 2009. It is accepted that she commenced employment as a domestic worker at the residence of the Lebanese Ambassador to the United Kingdom and that she was employed by the Ambassador personally not by the Embassy.
The appellant's application for leave to remain.
On 16 August 2013, solicitors for the appellant wrote to the respondent. The letter is headed:
“Application for an extension of stay in the United Kingdom as a domestic worker in a private household pursuant to paragraph 159E of the Immigration Rules”.
The letter stated that the appellant:
“entered the United Kingdom on 16th April 2009 as a domestic worker in a private household working for the Osseiran household (incidentally, the Lebanese Ambassador)”.
The letter enclosed an application form, Form FLR (O), signed by the appellant and dated 10 July 2013. Form FLR (O) is a form for applications for leave to remain in the United Kingdom not covered by other application forms. The letter also enclosed two letters...
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