R v Immigration Appeal Tribunal, ex parte Ruhul Amin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 31 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0731-13 |
| Docket Number | 87/0850 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1987 |
[1987] EWCA Civ J0731-13
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE TAYLOR)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Stephen Brown
Sir John Megaw
87/0850
MR. R. E. L. TER HAAR (instructed by The Treasury Solicitor) appeared for the Appellant (Immigration Appeal Tribunal).
MR. J. F. F. PLATTS-MILLS Q.C. and MR. G. M. G. HAQUE (instructed by B. C. Mascarenhas, Esq., 678 Lordship Lane, Wood Green, London N22 5JN) appeared for the Respondent (Haque).
MR. M. U. AHMED (instructed by B. C. Mascarenhas, Esq.) appeared for the Respondent (Rahman).
MR. N. Al-SOLAIMANI (instructed by B. C. Mascarenhas, Esq.) appeared for the Respondent (Ruhul).
There are before the court three appeals by the Immigration Appeal Tribunal from a judgment of Taylor J. given on 21st November 1985. They raise what we have been told is an important question concerning the rights of adult sons of Commonwealth citizens who were settled in the United Kingdom at the coming into force of the Immigration Act 1971 to enter this country. The answer to the question ultimately turns on the construction and effect of section 1 (5) of that Act ("the 1971 Act").
The judgment was given on three applications for judicial review arising out of decisions by entry clearance officers refusing admission to three Bangladeshi young men who had wished to enter the United Kingdom. The applicants were, respectively, Mr. Amin Ruhul, Mr. Naziur Rahman and Mr. Mohammed Hamidul Haque. Mr. John Platts-Mills Q.C. has appeared before us, as he did in the court below, on behalf of Mr. Haque. His submissions have been adopted by Mr. Al Solaimani on behalf of Mr. Ruhul, and Mr. Ahmed on behalf of Mr. Rahman.
The issues of law which arise in each case are the same, as is indicated by the identical form of the grounds set out in each of the three notices of appeal. The facts of each case are briefly set out in the judgment of Taylor J., to which reference may be made for some further details of the circumstances of the individual applicants. For the purposes of this judgment it will suffice to summarise the common features of each of the three cases, as follows:
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(1) the relevant application for an entry certificate was made in 1980 and was refused in 1982;
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(2) the applicant was under 21, but over 18, at the date of the application;
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(3) the father of the applicant was a Commonwealth citizen who had been settled in the United Kingdom at the coming into force of the 1971 Act;
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(4) the entry clearance officer refused an entry certificate basing himself on paragraph 47 of the rules contained in the Statement of Changes in Immigration Rules (1980) (H.C. 394), which were the rules under the 1971 Act in force at the date of refusal.
In Ruhul's case the Immigration Appeal Tribunal, on 24th January 1984, had allowed an appeal by the Home Office from the decision of an Adjudicator, who had allowed an appeal from the refusal of entry clearance and remitted the matter for a fresh hearing. After a second adjudication, the Adjudicator, on 15th March 1984, dismissed the appeal from the refusal of entry clearance. An application for leave to appeal from that decision was dismissed by the Immigration Appeal Tribunal on 29th May 1984. Taylor J. granted an application for judicial review of the three decisions of 24th January 1984, 15th March 1984 and 29th May 1984.
In Rahman's case an Adjudicator, on 13th August 1984, dismissed an appeal from the refusal of entry clearance, and on 23rd October 1984 the Immigration Appeal Tribunal refused leave to appeal. Taylor J. granted an application for judicial review of the decisions of 13th August 1984 and 23rd October 1984.
In Haque's case there was an appeal from a refusal of entry clearance to an Adjudicator, which was allowed. The Secretary of State then appealed from that decision to the Immigration Appeal Tribunal which, on 17th March 1983, allowed the appeal. Taylor J. granted an application for judicial review of that decision.
In opening this appeal on behalf of the Tribunal, Mr. Ter Haar, in the course of his able address, took us through a very helpful review of the more recent history of the relevant legislation, to which Mr. Platts-Mills paid generous tribute. we will begin with a similar, if rather more condensed summary, since this will assist to explain not only the issues of law which arise on these appeals, but also our answers to these issues.
Before the coming into effect of the 1971 Act, the admission of Commonwealth citizens into the United Kingdom was primarily governed by the Commonwealth Immigrants Act 1962 ("the 1962 Act") as subsequently amended.
By virtue of section 1 (1) of that Act, the provisions of Part I were expressed to have effect "for controlling the immigration into the United Kingdom of Commonwealth citizens to whom this section applies". Section 1 (2) designated the Commonwealth citizens to whom the section was to apply, in other words who were to be subject to immigration control. This subsection was in terms which would have included the applicants in this case. Section 2 (1) provided that, subject to the following provisions of the section:
"an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom section one of this Act applies who enters or seeks to enter the United Kingdom—
(a) refuse him admission into the United Kingdom; or
(b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there."
The general rule thus was that Commonwealth citizens to whom section 1 applied required the immigration officer's leave to enter. However, sections 2 (2) and 2 (3) provided:
"(2) The power to refuse admission or admit subject to conditions under this section shall not be exercised, except as provided by subsection (5), in the case of any person who satisfies an immigration officer that he or she—
(a) is ordinarily resident in the United Kingdom or was so resident at any time within the past two years; or
(b) is the wife, or a child under sixteen years of age, of a Commonwealth citizen who is resident in the United Kingdom or of a Commonwealth citizen (not being a person who is on that occasion refused admission into the United Kingdom) with whom she or he enters or seeks to enter the United Kingdom.
(3) Without prejudice to subsection (2) of this section, the power to refuse admission under this section shall not be exercised, except as provided by subsections (4) and (5), in the case of a Commonwealth citizen who satisfies an immigration officer either—
(a) that he wishes to enter the United Kingdom for the purposes of employment there, and is the person described in a current voucher issued for the purposes of this section by or on behalf of the Minister of Labour or the Ministry of Labour and National Insurance for Northern Ireland; or
(b) that he wishes to enter the United Kingdom for the purpose of attending a course of study at any university, college, school or other institution in the United Kingdom, being a course which will occupy the whole or a substantial part of his time; or
(c) that he is in a position to support himself and his dependants, if any, in the United Kingdom otherwise than by taking employment or engaging for reward in any business, profession or other occupation;
and the power to admit subject to conditions under this section shall not be exercised in the case of any person who satisfies such an officer of the matters described in paragraph (a) of this subsection."
Sections 2 (4) and (5) contained certain provisions of which the broad effect was to authorise an immigration officer to refuse admission on medical grounds or in the case of persons who suffered from mental disorder or who had been convicted of a criminal offence or whose admission would, in the opinion of the Secretary of State, be contrary to the interests of national security or in respect of whom a deportation order was in force.
However, the broad effect of sections 2 (2) and 2 (3) was to give a Commonwealth citizen to whom section 1 applied, but who did not fall within the exceptions contained in sections 2 (4) and 2 (5), a statutory right to receive leave to enter the United Kingdom because, by virtue of the subsections, the immigration officer, on being satisfied that the applicant fell within section 2 ( 2) or 2 (3), could not exercise his power to refuse admission.
It is, however, to be noted that children over the age of 16 of Commonwealth citizens resident in the United Kingdom were not as such given any such statutory right because they did not fall within section 2 (2) (b). The 1962 Act placed no specific fetters on the powers of immigration officers to refuse admission to such persons.
However, section 16 (3) imposed an important general restriction on the powers of immigration officers by providing:
"In the exercise of their functions under this Act, immigration officers shall act in accordance with such instructions as may be given by the Secretary of State…"
Section 16 (3), by necessary implication, thus empowered, but did not oblige, the Secretary of State to give instructions to immigration officers as to the exercise of their functions under section 2 of the 1962 Act.
On 1st March 1968 section 2 of the Commonwealth Immigrants Act 1968 ("the 1968 Act") came into effect. This...
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