Pearson v Immigration appeal tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 1978 |
| Date | 14 December 1978 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Stephenson LJ, Brandon LJ, Sir David Cairns
L. F. Read QC and I. A. MacDonald for the applicant.
M. D. Kennedy for the respondent.
Employment — Department of Employment — Decision of Department refusing work permit to visitor for specified job with named employer — Application to Home Secretary for variation of limited leave to enable visitor to continue in the specified job — Application refused under immigration rule on ground that the employment specified was not approved by the Department of Employment — Whether decision of Department of Employment could be questioned by an adjudicator under the Immigration Act 1971 — Whether para 5 of HC 80 ultra vires the Act — Whether discretion of Home Secretary improperly fettered by para 5 of HC 80 — Whether Home Secretary had been ‘requested…to depart from the immigration rules’— Whether adjudicator and Tribunal rightly dismissed the appeal — Immigration Act 1971, s 1(4), s 3(2), s 4(1), s 13(3), s 14(1), s 19(1)(a)(i) & (ii), (1)(b), (2), s 20, s 33(1) — 80, paras 2, 4, 5, — HC 79, para 25.
The applicant (“Miss P”), a Commonwealth citizen, entered the United Kingdom as a vistor in February 1976. She was admitted for 6 months and no condition was made prohibiting her from entering employment. In April Miss P entered employment and her employer sought, through the Home Office, the permission of the Department of Employment to employ her; on the Department's official application form ‘for permission to employ an overseas worker’ the employer stated, inter alia, that no other suitable candidate was forthcoming from employment agencies and the Department's own offices. The Department of Employment informed the employer in June 1976 that
‘under current immigration policy, permission for the employment of overseas workers in secretarial or related types of work cannot be given unless the work is of a highly specialised nature requiring staff with the appropriate specialised knowledge and experience in addition to their basic skills’.
The Home Office Immigration Department, acting for the Secretary of State, on 7 July 1976 refused the variation of stay requested on the ground that ‘the Department of Employment are unable to approve of this employment’.
The adjudicator and (from the adjudicator) the Tribunal to whom Miss P appealed dismissing her appeal, held that the Home Secretary had made a decision in accordance with para 5 of HC 80 and there was therefore no power to allow the appeal under s 19(1)(a)(i) of the Immigration Act 1971, nor under sub-para (ii) of s 19(1)(a), so that the appeal had to be dismissed under s 19(1)(b). The adjudicator observed that the reasons for the refusal of the Department of Employment were ‘not of any judicial interest to the immigration appellate authorities’, and the Tribunal held that neither the adjudicator nor the Tribunal had jurisdiction to adjudicate upon the question whether the decision of the Department of Employment was justified, nor indeed had the Home Office;1 further, the Tribunal rejected a submission that the adjudicator had power under s 19 to substitute his discretion for that of the Secretary of State for the Department of Employment.2
Paragraph 5 of HC 80 provides that if the Department (of Employment) is not‘prepared in the particular case to approve the proposed employment’ an extension of stay ‘should be refused’.3
When Miss P moved in the Court of Appeal for an order of certiorari to quash the determination of the Immigration Appeal Tribunal, it was submitted for her that the decision appealed against, whether made by the Secretary of State for the Home Department or the Secretary of State for the Department of Employment, was made in the exercise of the discretion conferred on “the Secretary of State” by s 4(1) of the Immigration Act 1971 and it was capable of review by an adjudicator under s 19(1)(a)(ii); that no Secretary of State was being asked to depart from para 5 of HC 80 or any other immigration rule but only to act in accordance with the law and those rules; that (by way of meeting s 19(2) of the Act) the discretion conferred by s 4 on “the Secretary of State” and accepted by the Home Secretary could not be cut down by any rules of practice: he could not fetter his own discretion—still less the adjudicator's—by a rule which required himself and the immigration department's officers to refuse an extension of leave whenever the Department of Employment, in pursuance of its policy, refused to approve the employment of an immigrant; that if the latter part of para 5 of HC 80 had to be construed as an invariable rule it was ultra vires, and the Home Secretary would be abrogating his statutory duty to decide and making the Department of Employment the depository of an unappealable decision.
For the respondent it was submitted, inter alia, that the Home Secretary was entitled to prevent any person who had been permitted to enter for a limited stay without a work permit from remaining here without one: he would be acting lawfully in doing so, as when acting under para 25 of HC 79 he lawfully carried out the policy of restricting the entry of persons coming to take employment but arriving without work permits; further, there had in the respondent's submission been no application to the Home Secretary either to exercise his residual discretion under s 4(1) outside the rules or to depart from the rules (HC 80)4: Miss P was simply challenging the refusual by the Department of Employment to grant her a work permit, and that refusal was a fact which the Home Secretary was entitled to treat as conclusive; by acting on that refusal the Home Secretary was not delegating his duty, for in reality he would entertain an application but in his discretion refuse it unless there was any reason to make an exception under para 5 of HC 80 in the particular case. Finally it was, by reason of the subject matter of the Immigration Act 1971,
the Home Secretary who must be identified as “the Secretary of State” referred to in s 4 and throughout the Act.Held (i) The power conferred by s 4(1) of the 1971 Act was conferred on the Home Secretary; the Statute gave him the last word and it was that which Miss P wanted the adjudicator to review; (p 224)
(ii) the Home Secretary had been ‘requested…to depart from the rules’ (s 19(2)), specifically from para 5 of HC 80; (p 224)
(iii) though the rules laid down by the Secretary of State under s 3(2) of the 1971 Act were not delegated legislation or rules of law, but rules of practice laid down for the guidance of those entrusted with the administration of the Act, including immigration officers, responsible officials authorised to act on behalf of the Secretary of State, adjudicators and appeal tribunals, they had for adjudicators the force of law; R v Secretary of State for the Home Department, ex p HosenballUNK, ([1977] 3 All ER 452 CA) cited. (p 224)
(iv) paragraph 5 of HC 80 was not ultra vires, but bearing in mind the wide variety of language used in the immigration rules and that the stated purpose of Part A of the HC 80 rules was to set out the principles to be followed in dealing with the applications of the chief categories of people who might seek variations of their limited leave to enter, none of the forms of words used in para 5 should be regarded as laying down an invariable rule admitting of no exceptions: they marked out guidelines and declared the policy which regulated the control of immigration more firmly in some cases than others; (p 224)
(v) in para 5 of HC 80 the Home Secretary made a rule as to how he would, as a matter of general policy, exercise his discretion, but not as to how he would exercise it in every case without considering the circumstances of the particular case and whether to make an exception to that policy; accordingly he had not fettered his discretion unlawfully in making para 5; (p 225)
(vi) the decision of the Department of Employment could not be questioned by an appeal to an adjudicator; (p 225)
(vii) The adjudicator (acting under s 19(1) and (2)) and the Tribunal (acting under s 20(1)) had rightly dismissed Miss P's appeal, (p 226)
Stephenson LJ: Miss Fay Dorothy Pearson by leave of this Court moves for an order of certiorari to remove into this Court and quash a decision of the Immigration Appeal Tribunal dated 1 November 1977. That decision was a decision to dismiss her appeal against the determination of an adjudicator dated 20 July 1977, whereby he had dismissed her appeal against a decision of the Secretary of State dated 7 July 1976, refusing to vary her leave to enter or the conditions of her leave to enter.
The applicant is a Commonwealth citizen from Australia. She entered the United Kingdom on 1 February 1976. Not being patrial, she had no right of abode in the United Kingdom but needed leave to enter it in accordance with the Immigration Act 1971 which, by s 1(2) says:
‘Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).’
Then s 3(1) says:
‘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...
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...by such lack of clarity in the drafting. As the Rules are not rules of law but rules of practice ( Pearson v Immigration Appeal Tribunal [1978] ImmAR 212), it is well settled that they are to be interpreted 'in accordance with the law' generally and in accordance with Home Office guidance a......
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...in the nature of delegated legislation so as to amount to strict rules of law”. See too Geoffrey Lane LJ at 785C-786C. In Pearson v IAT [1978] Imm AR 212, following Hosenball, the Immigration Rules were described by the Court of Appeal as rules of practice laid down for the guidance of thos......
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R (BAPIO Action Ltd) v Secretary of State for the Home Department
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