Suthendran v Immigration Appeal Tribunal
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Russell of Killowen |
| Judgment Date | 27 October 1976 |
| Judgment citation (vLex) | [1976] UKHL J1027-2 |
| Date | 27 October 1976 |
| Court | House of Lords |
[1976] UKHL J1027-2
House of Lords
Lord Wilberforce
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Russell of Killowen
Upon Report from the Appellate Committee, to whom was referred the Cause Suthendran against Immigration Appeal Tribunal, That the Committee had heard Counsel, as well on Monday the 26th, as on Tuesday the 27th and Wednesday the 28th, days of July last, upon the Petition and Appeal of Jayaratnam Suthendran of Princess Marina Hospital, Upton, Northampton in the County of Northampton, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 25th of June 1976, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of the Immigration Appeal Tribunal, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 25th day of June 1976, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs of the Appellant in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the advantage of reading in advance the opinion prepared by my noble and learned friend Lord Kilbrandon. I entirely agree with it. The result contended for by the respondents produces potential injustice, is not compelled by the wording of the Immigration Act 1971, and is not in agreement with administrative practice prior to the reasoning in Subramaniam's case. I would therefore have allowed this appeal.
My Lords,
The Immigration Act 1971 regulates the entry into and stay in the United Kingdom of persons who do not have the right of abode in the United Kingdom. That right may be acquired by a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more (Section 2(1)( c)). The power to give or to refuse leave to enter the United Kingdom is exercised by immigration officers and the power to give leave to remain in the United Kingdom or to vary any leave to remain in the United Kingdom (whether as regards duration or conditions) by the Secretary of State (Section 4(1)). A would-be immigrant refused leave to enter may appeal to an adjudicator against a decision that he requires leave or against the refusal of leave (Section 13(1)). Section 14 deals with appeals against conditions and section 14(1) reads as follows:—
"Subject to the provisions of this Part of this Act, 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; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave."
From the decision of an adjudicator an appeal lies to the Immigration Appeal Tribunal only with the leave of the adjudicator or of the Tribunal (Section 20(1); The Immigration Appeals (Procedure) Rules 1972 (1972 No. 1684) Rule 14).
The appellant, a citizen of Sri Lanka, obtained a certificate giving him leave to enter the United Kingdom and to remain here for the period of twelve months on condition that he did not enter any employment or engage in any business or profession. The certificate was granted to him to enable him to take a course at the South-East London Technical College in engineering.
He entered the United Kingdom on the 23rd July 1973 so, unless the leave granted to him was extended, he ceased to be entitled to be in this country on the 23rd July 1974. He did not attend the technical college on any occasion and in breach of the condition obtained employment by Selfridges and by Night Security Ltd. On the 2nd June 1974 he began work as a nursing assistant at the Princess Marina Hospital, Northampton. On the 23rd July 1974 that hospital applied for a work permit for him. That application was refused by the Secretary of State. He appealed and on the 13th May 1975 the adjudicator dismissed his appeal. The appellant sought leave to appeal to the Tribunal but on the 18th June 1975 that was refused.
On the 20th May 1975, a week after his appeal to the adjudicator had been dismissed, the hospital asked that the appellant should be allowed to remain at the hospital to complete his training as a pupil nurse.
On the 17th June 1975 the Secretary of State refused that application and notified the appellant that
"For the purpose only of enabling you to make arrangements to leave this country your leave to enter is varied so as to permit you to remain in the United Kingdom until 17th July 1975. No further extension of stay will be granted."
The appellant appealed to the adjudicator against this refusal and on the 16th January 1976 his appeal was allowed. From this decision the Secretary of State obtained leave to appeal and on the 4th June 1976 his appeal was allowed by the Tribunal on the ground that as the appellant's limited leave to remain in the United Kingdom had expired on the 23rd July 1974, he had had no right to appeal from the Secretary of State's refusal to the adjudicator.
The appellant then applied for leave to apply for an order of certiorari to quash the decision of the Tribunal. Leave was refused by the Court of Appeal and now the appellant appeals to this House with the leave of the House.
The appellant, not having the right of abode in the United Kingdom could only "live, work and settle in the United Kingdom by permission and subject to such regulation and control of" his "entry into, stay in and departure from the United Kingdom as is imposed by this Act …" (Section 1(2)).
In this subsection it is to be noted "entry into" is treated as distinct from staying in this country.
"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 given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employed or occupation in the United Kingdom, or requiring him to register with the police, or both."
It is one instance of the less than felicitous drafting of the Act that in section 3(1)( b) the distinction drawn between entry into and staying in this country is blurred. Leave to enter is one thing. Permission to remain here for a definite or indefinite period is another. In section 3(1)( b) "Leave to enter … either for a limited or for an indefinite period" must be interpreted as meaning leave to enter and to remain.
"Limited leave to enter or remain" appears in section 3(1)( c) and in section 14(1) and "Limited leave" is defined in section 33 as meaning "leave under this Act to enter or remain in the United Kingdom which is … limited as to duration".
From the date when the Act came into operation until the decision of the Divisional Court on the 25th February 1976 in R. v. Immigration Appeal Tribunal ex p. Subramaniam (1976) 1 A.E.R. 915 the Home Office regarded section 14(1) as entitling a person who had had a limited leave to enter or remain here to apply for a variation of the duration for which that leave was granted even though at the time of his application the period for which the leave had been granted had expired; and regarded it as within the Secretary of State's power to grant or to refuse such an application. The letter of the 17th June 1975 to which I have referred is an instance of the Secretary of State acting in this belief.
In that case the Divisional Court (Lord Widgery C.J., Kilner Brown and Watkins JJ) held, as was contended by counsel for the Secretary of State, that the phrase in section 14(1) "a person who has a limited leave under this Act" was not wide enough to include "someone who did have a limited leave" under the Act "but no longer has". The Court of Appeal (Lord Denning M.R., Ormrod and Bridge L.JJ) dismissed the appeal from this decision.
The question now to be decided is whether that decision of the Divisional Court was right.
I propose first to consider section 14(1) by itself and then to consider the wording of other provisions of the Act lead me to a different conclusion to that to which I would come on consideration of section 14(1) alone. It gives a right of appeal against any variation of the leave granted whether as to its duration or the conditions to which it was subject, and such a variation may be made by the Secretary of State on his own initiative (s.3(3)(a)). It gives a right of...
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