R v Immigration Appeal Tribunal, ex parte Coomasaru

This appeal raises two distinct issues. The first is whether the applicant was entitled to be admitted to this country as a returning resident. The second is whether, if he was or claimed to be so entitled, he could appeal against the restrictions imposed upon his entry in June 1978.

I have had the advantage of reading the judgment of Lord Justice Dillon with which I agree. Both for the purposes of the Immigration Act 1971 and for the purposes of H.C.79 a person is settled in the United Kingdom if he is ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain (see section 2 (3) (d) of the Act). No immigration officer had authority to grant the applicant diplomatic status, but the officer concerned with his entry on the 11th May, 1975 was entitled to grant him permission to enter and remain so long as he was employed with the Sri Lank High Commission. This, as I see it, is precisely what he did. It is true that it is an unusual form of permission, but for present purposes that is immaterial. It is equally immaterial that in granting permission in this form the officer thought that the applicant had diplomatic status and was exempt from control so long as he retained that status. What matters is that this form of permission involved a restriction on the period for which the applicant might remain, namely only so long as he was employed with the Sri Lanka High Commission, and so prevented his acquiring the status of one who is settled in the United Kingdom. Quite clearly the permission given on the 2nd June, 1975 was intended to reinstate the same restricted permission which had become spent when the applicant left the country on the 30th May, 1975.

The second issue, concerning the applicant's right of appeal, is one of general importance. Part II of the Immigration Act 1971 provides successively in sections 13 to 17 for five different species of appeal. The appeal is in the first instance to an adjudicator, whose powers are set out in section 19 and there is a further right of appeal to the Appeal Tribunal under section 20.

Section 13 is concerned with appeals against exclusion from the United Kingdom—"a person who is refused leave to enter the United Kingdom under this Act may appeal…" This type of appeal suffers from the disadvantage from the point of view of the appellant that before he can exercise his right he must first leave the United Kingdom unless he held a current entry clearance permit or was a person named in a current work permit (section 13 (3)). No such impediment exists in the case of an appeal under section 14 which is concerned with appeals against conditions attached to a leave to enter—"a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions) or against any refusal to vary it". Sections 15, 16 and 17 are not material for present purposes.

The scheme of immigration control in respect of Commonwealth citizens operated in 1978 by means of two apparently distinct sets of rules. The first, contained in House of Commons Paper No. 79, was entitled "Statement of Immigration Rules for Control on Entry". The second, contained in House of Commons Paper No. 80, was entitled "Statement of Immigration Rules for Control after Entry". As might be expected, the criteria applied in deciding whether or not a Commonwealth citizen should be allowed to enter the United Kingdom are quite different from those applied in deciding whether or not to vary the conditions applicable to a permit under which the Commonwealth citizen has already entered. In general the latter are designed to take account of changes in circumstances since that entry.

This dichotomy in rules for control and related appeals procedures makes sense until you get a situation in which a would-be immigrant is aggrieved at the conditions which are imposed at the time when he is permitted to enter. This is covered by rule 70 of the Rules for Entry (H.C.79) which provides that:

"70. Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused".

The impartial observer, having read that rule, would no doubt say, "How sensible. If an immigrant is permitted to enter as a visitor when he claims to have been entitled to some other and better status upon entry or if he claims to have been entitled to stay for longer than the immigration officer was prepared to permit, it would be absurd to require him not only to treat his limited permission to enter as a refusal of permission to enter but also to leave the United Kingdom before he could appeal. Of course the scheme is that he can use his permission to enter, in accordance with its terms, renew his application for a better status and, if that is refused, appeal under section 14 on the basis that there has been a refusal to vary".

"Not so", says Mr. Simon Brown, who has appeared on behalf of the Immigration Appeal Tribunal but is not unfamiliar with the views of the Home Office. "There may be an unfortunate lacuna in the system, but the sad fact is that section 14 appeals are only concerned with variations which can be claimed on the basis of H.C.80, and H.C. 80 is not concerned with what status should have been accorded to an immigrant upon entry. The immigrant cannot use the section 14 route". The impartial observer replies, "Oh; I see. Then I assume that the immigrant can appeal under section 13 and, since he is already in the United Kingdom on the strength of a valid entry permit, he need not first leave the country". "Not so", replies Mr. Simon Brown. "If he wants to appeal under section 13, he must first leave the country, but I ought to warn you that such an appeal is bound to fail unless he not only leaves the country but also reapplies for entry and is refused. If he reapplies for entry and is again given a limited permit to enter, he will be no better off than when he started". "Why?", asks the impartial observer. "Well", says Mr. Simon Brown, "section 13 appeals are against a refusal of entry and the immigrant whom we have been discussing has not been refused entry. He has been permitted to enter, albeit on terms which are less favourable than those to which he claims to be entitled". At this point the impartial observer asks Mr. Simon Brown to explain how rule 70 is intended to operate, and Mr. Brown says that he will have to take instructions.

The plain fact is that either the section 14 appeal procedure can be used to challenge the propriety of conditions imposed upon entry or rule 70 involves a very serious misrepresentation by the Secretary of State. I prefer to accept the former alternative.

The inter-relationship...