R v Entry Clearance Officer, Bombay, ex parte Amin
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Scarman,Lord Brandon of Oakbrook,Lord Brightman |
| Judgment Date | 07 July 1983 |
| Judgment citation (vLex) | [1983] UKHL J0707-1 |
| Date | 07 July 1983 |
| Court | House of Lords |
[1983] UKHL J0707-1
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Scarman
Lord Brandon of Oakbrook
Lord Brightman
House of Lords
My Lords,
This appeal raises two questions, one under the Immigration Act 1971 ("the 1971 Act") and the other under the Sex Discrimination Act 1975. The question under the 1971 Act concerns the status of what are called "special vouchers", sometimes also called "special quota vouchers", which are issued in certain circumstances to persons who are citizens of the United Kingdom and Colonies, and holders of a United Kingdom passport. The appellant is a citizen of the United Kingdom and Colonies who holds a United Kingdom passport. She is a woman of Asian origin. The appeal was presented upon the footing that she had applied for a special voucher and that her application had been refused. That is not a strictly accurate description of what occurred, but, for reasons that will appear later, I propose to assume that it is correct. The appellant now claims to be entitled to appeal to an adjudicator against the refusal of a special voucher. Her claim is founded on section 13(2) of the 1971 Act which provides:—
"(2) Subject to the provisions of this Part of this Act, a person who, on an application duly made, is refused a certificate of patriality or an entry clearance may appeal to an adjudicator against the refusal."
The appellant contends that a special voucher is an entry clearance within the meaning of that subsection. Her contention is denied by the respondent. In order to explain the rival contentions, it is necessary to refer briefly to the origin of special vouchers. Before 1968 holders of British passports were, generally speaking, free to enter and settle in the United Kingdom without restriction. From about 1965 onwards the governments of certain East African states, formerly British colonies, adopted a policy of excluding persons who were not citizens of their state from trading or taking employment there. The consequence was that persons who did not hold local citizenship of the East African state in which they were living were virtually obliged to leave it. Many of them came to the United Kingdom, as they were then entitled to do, but the influx became difficult to absorb. The Commonwealth Immigrants Act 1968 therefore extended immigration control, which had previously applied only to persons not holding British passports, to apply also to citizens of the United Kingdom and Colonies holding British passports unless they had certain prescribed connections with the United Kingdom. Difficulties then arose because many holders of British passports, particularly Asians living in East Africa, found themselves obliged to leave the countries where they had been living and with nowhere else to go because they were not allowed into the United Kingdom. To ease their position, the British Government in 1968 introduced the special voucher scheme, whereby vouchers are issued to heads of households, who are holders of British passports, and who are under pressure to leave their countries of residence. The scheme has no express statutory basis and no rules have been published defining the conditions on which special vouchers will be issued. The reason is that the scheme is intended to be flexible and is operated by the exercise of administrative discretion, according to the needs of particular individuals and to the circumstances prevailing in their country of residence at the time. It is subject to an overall ceiling of 5,000 special vouchers per annum. The ceiling applies to the number of heads of families, but the number of persons actually admitted to the United Kingdom as a result of the scheme is much larger than that as dependants, including children up to 25 years old provided they are unmarried and dependant on the voucher holder, are allowed to accompany the head of the family to the United Kingdom if they have entry clearance.
Special vouchers were at first issued at the discretion of the British High Commissioners in East Africa, but some are now issued at the discretion of entry clearance officers in India, including the entry clearance officer at Bombay who is the respondent to this appeal.
In 1973 the appellant's father applied for a special voucher. He was a citizen of the United Kingdom and Colonies and held a British passport but he was living in Tanzania. He was granted a special voucher for himself, and entry clearance was also given to his wife and four unmarried children. At that date the appellant was already married to an Indian national and was living with him in India. Her father therefore did not include her in his application, although he was still supporting her financially. In 1977 the appellant, who was still living in India, applied for a special voucher on her own account. Her application was refused on the ground that she was not the head of a family. She then initiated the present proceedings for judicial review directed to the (British) entry clearance officer at Bombay. Her application for judicial review was refused by the Divisional Court (Lord Lane C.J., Griffiths and Webster JJ.) and on appeal by the Court of Appeal (Ormrod and Dunn L.JJ. and Waterhouse J.).
The whole question in this part of the case is whether a special voucher is an entry clearance in the sense of section 13(2) of the 1971 Act. "Entry clearance" is defined in section 33(1) of the Act as follows:—
"'Entry clearance' means a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person's eligibility, though not patrial, for entry into the United Kingdom (but does not include a work permit);"
Clearly a special voucher is not a visa nor an entry certificate but the appellant contends that it is an "other document" of the type described in that definition. I agree with both the courts below that it is not. I reach that opinion for two reasons.
First, as Ormrod L.J. said in the Court of Appeal, there is no basis on which any appellate body or person could properly adjudicate upon an appeal against refusal of a special voucher. An applicant has no right to be granted a special voucher and he could not show that an entry clearance officer had erred in law by refusing his application. The grant or refusal of a special voucher is a matter of administrative discretion, depending upon the circumstances of the individual applicant and, as it is subject to an overall ceiling, it may involve weighing the needs of one applicant against those of others who are in competition with him. In my opinion, accordingly, a right of appeal would be unworkable in practice, and I would only be disposed to decide that it had been conferred by the 1971 Act if the Act contained an unambiguous provision to that effect. The only part of the Act said to have that effect is the definition of entry clearance in section 33(1) which I have just quoted and to which I shall return later.
Before I consider that definition, I should mention that counsel for the respondent conceded (rightly in my opinion) that, although the discretion of the administrative officer responsible for issuing special vouchers is unrestricted, its exercise is always subject to judicial review on the principles which were stated by Lord Greene M.R. in the well-known case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 228. But that concession does not in any way imply that there is a right of appeal on the merits against an administrative decision. Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made. No abuse of authority or unfair treatment such as would call for judicial review is alleged here where the appellant's case rests simply on an assertion of a legal right of appeal. Judicial review is entirely different from an ordinary appeal. It is made effective by the court's quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer. The difference was explained in this House recently in the case of Chief Constable of North Wales Police v. Evans [1982] 3 All E.R. 141 and I need not repeat what was said there. Section 19 of the 1971 Act directs adjudicators as to their duties when hearing appeals (see for example section 19(3)) but it throws no light on the question of whether there is a right of appeal such as the appellant now asserts. Its only possible relevance to the present question is the reference to discretion in section 19(1) which provides inter alia as follows:
"19(1) … an adjudicator on an appeal to him under this Part of this Act—
( a) shall allow the appeal if he considers—
…
(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; …"
The adjudicator's power under section 19(1)( a)(ii) applies to cases where matters of discretion arise in the course of an appeal which is otherwise admissible, but it does not in my opinion have the effect of making an appeal admissible in a case such as the present which depends entirely upon the unrestricted discretion of an administrative officer.
For these reasons I consider it highly unlikely that refusal of a special voucher is intended to be subject to the right of appeal under section 13(1) of the Act.
I return now to the definition of entry clearance in section 33(1) of the 1971 Act. It includes a reference to an "other document" which fulfils a double qualification, viz. one which (1) "in accordance with the immigration rules" (2) "is to be taken as evidence of a person's eligibility …. for entry...
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