R v Immigration Appeal Tribunal, ex parte Kassam

JurisdictionEngland & Wales
Judgment Date14 March 1980
Judgment citation (vLex)[1980] EWCA Civ J0314-1
CourtCourt of Appeal (Civil Division)
Date14 March 1980

[1980] EWCA Civ J0314-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal From the High Court of Justice

Queen's Bench Division

Divisional Court


Lord Justice Stephenson

Lord Justice Ackner


Sir David Cairns

Azim Ebrahim Kassam
- and -
The Immigration Appeal Tribunal

MR. C. FLETCHER-COOKE, Q. C. and MR. K. S. NATHAN (instructed by Messrs. Nazerali & Co.) appeared on behalf of the Appellant (Applicant).

MR. D. LATHAM (Instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Respondent).


The appellant is a Commonwealth Citizen, being a citizen of Tanzania. He was given leave to enter the United Kingdom in August 1972 for six months as a visitor. His application to remain here was after a long delay refused in 1975, and after an unsuccessful appeal from such refusal was repeated and again refused in 1976. On 17th April 1977 the Secretary of State for the Home Department, satisfied that he had remained here without authority beyond the time limited by his leave, decided to deport him under Section 3(5)(c) of the Immigration Act 1971. Again he appealed unsuccessfully in 1978, his appeals being rejected by an adjudicator on 6th March and by the Immigration Appeal Tribunal on 12th September.


Those appeals rested on a number of grounds. The only one which concerned the Divisional Court or concerns this court arises out of his marriage on 22nd January 1977 to a Pakistani who had been given leave to enter as a student for a limited period expiring in May 1977. The relevant Immigration Rule is para. 22 of HC 79 which provides:

"The wife and children under 18 (as defined in paragraphs 41-43) of a person admitted as a student should be given leave to enter for the period of his authorised stay."


The appellant's counsel submitted to the adjudicator and to the Appeal Tribunal that that rule offended against the Sex Discrimination Act 1975 unless it applied to allow a husband to stay here for the period of his wife's authorised stay as a student. On his motion to the Divisional Court of 20th August 1978 to review the Appeal Tribunal's decision he again raised that ground among others. But his application forjudicial review in the shape of an order for mandamus and certiorari came on for hearing on 22nd February 1979 immediately after the Divisional Court had decided in the case of Veena Ahluwalia that the Act of 1975 had "no application whatsoever to this kind of case". Mr. Fletcher-Cooke accordingly, having apparently no faith in the appellant's other grounds, submitted to judgment and appeals to this court on this one ground.

"(i) The Divisional Court erred in law in coming to the conclusion as they did that the Sex Discrimination Act 1975 has no application to a case under the provisions of the Immigration Act 1971 or rules made thereunder."


Our decision will not affect Ahluwalia's case because her application for certiorari was granted on other grounds. But the point is of general importance and we have taken time to consider it.


Mr. Fletcher-Cooke attacks the conclusion that the. Act of 1975 has no application to the Act of 1971 and the Immigration Rules with two submissions:


(1) The general principles of sex discrimination set out in Part 1, Sections 1 & 2 of the Act of 1975 apply universally except where specific exceptions are enacted by the Act itself, and the provisions of Parts II, III and IV of the Act are not exhaustive.


(2) If that is wrong. Section 29(1) in Part III of the Act expressly applies to what the Secretary of State has done in this case.


I agree with the Divisional Court in Ahluwalia's case that the first submission should be rejected. It is true that particular exceptions are to be found in the Act: in PartII to 'Discrimination in the Employment Field' by employers in Section 6 sub-sections (3) to (7) and Section 10, and in the 'Special Cases' specified in Sections 17 and following; and in Part III to 'Discrimination in other Fields' such as education, in Sections 26 to 28, and accommodation in different kinds of premises and/or the provision of all kinds of goods, facilities and services in Sections 32 and following. There are also General Exceptions from Parts II to IV to be found in Part V in Sections 43 and following.


Furthermore, acts done by a Minister of the Crown or government department are not excepted from the Act. On the contrary Section 85(1) provides:


"This Act applies -

(a) to an act done by or for purposes of a Minister of the Crown or government department, or

(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office."


And subsection (4) expressly excepts from the application of the Act service in the armed forces of the Crown.


Nowhere in the Act of 1975 are the Secretary of State and his exercise of his statutory powers, or the acts of his immigration officers, under the Act of 1971 excepted from the application of the Act, and the right to enforce the Act by an Order of certiorari, mandamus or prohibition is expressly preserved by Section 62(2).


All this, however, ignores the primary purpose of the Act, as expressed in its language and in the way in which it is set out no less than in its preamble, namely 'to renderunlawful certain kinds of sex discrimination and discrimination on the ground of marriage'. This" it effects by first setting out in Part 1 what is discrimination to which the Act applies. Discrimination on the ground of marriage is not in question here, and I need only read the provisions of Part 1 which relate to sex discrimination against women and men. It is of course sex discrimination against a man which is alleged here. They are Sections 1(1), 2(1) and for completeness Section 5. Section 1(1) provides:

"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but -

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it."


Section 2(1) provides:

"Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite."


Section 5 provides:

"(1) In this Act -

(a) references to discrimination refer to any discrimination falling within sections 1 to 4; and

(b) references to sex discrimination refer to any discrimination falling within section 1 or 2, and related expressions shall be construed accordingly.

(2) In this Act -

"woman" includes a female of any age, and "man" includes a male of any age.

(3) A comparison of the cases of persons of different sex of marital status under section 1( 1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."


Lest there should be any doubt about it Section 82(1) provides that:


"In this Act, unless the context otherwise requires "Discrimination" and related terms shall be construed in accordance with S.5(l) …" And the Sub-section goes on to repeat the definitions of "man" and "woman" in S.5(2).


Nothing in Part 1 of the Act makes any discrimination unlawful, as Mr. Latham...

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