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Secretary of State for the Home Department v. Abdulrazzak Sabbagh

Secretary of State for the Home Department v Abdulrazzak Sabbagh

Queen's Bench Division

[1986] Imm AR 244

Hearing Date: 18 April 1986

18 April 1986

Index Terms:

Deportataion -- whether upon ceasing employment with a diplomatic mission, which gave him exemption from immigration control, a person who, before beginning that employment was an overstayer, became again liable to deportation -- whether the exemption from immigration control provided by s 8 of the Immigration Act 1971 operates retroactively to cure a person's overstay immediately before that employment: Immigration Act 1971 s 3(5)(a), 8(3), 8(5), 14(2); HC 169 para 158.

Held:

The facts are set out in the determination. Held: 1. When a person who was an overstayer before entering employment which under s 8 of the Act exempts him from its provisions, ceases to be in that employment, he once again becomes liable to deportation.

2. Authorisation to remain in the United Kingdom, cannot take the place of leave for the purposes of s 3(5)(a).

Obiter: a person who on entry to the United Kingdom is exempt from the provisions of the Act and had at no time been granted limited leave is not liable to deportation by virtue of s 3(5)(a).

Cases referred to in the Judgment:

Mohammed Noorhu v The Secretary of State for the Home Department [1984] Imm AR 190

Muhammad Idrish v The Secretary of State for the Home Department [1985] Imm AR 155

Counsel:

A Gammons for the appellant; J Gillespie for the respondent

PANEL: Professor DC Jackson (Vice-President); GW Farmer (Vice-President); Major RAK MacAllan MC

Judgment One:

THE TRIBUNAL: The Secretary of State appeals to the Tribunal against the decision of an adjudicator (Mr IMS Donnell) allowing the appeal of Abdulrazzak Sabbagh against the decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971.

The respondent who is a citizen of Syria was admitted to this country for the first time on 4 September 1981 for one month as a visitor. His leave was extended to allow him to stay as a student or visitor until ultimately 31 October 1982. On 12 October 1982 he applied for a further extension as a student but this was refused on the same day, his leave being extended by the Variation of Leave Order 1976 until 9 November 1982. The respondent appealed against the refusal. An amended notice of refusal was issued on 14 March 1983. On 29 July 1983 the respondent withdrew his appeal.

On 19 August 1983 (as accepted by Mr Gillespie) the respondent entered into the employment of the Syrian Embassy. On that day the Embassy wrote to the Home Office requesting that the respondent be granted an extension of stay while employed by the Embassy. In a letter dated 6 February 1984 from the Home Office to Mr Gillespie, the Home Office indicated that while an Embassy Office is free to employ whom it wishes the Foreign and Commonwealth Office will at the request of the Home Office approach an Embassy to discuss the consistency of any employment with the immigration rules. In this case, it was said:

"The Foreign and Commonwealth Office subsequently entered into correspondence with the Syrian Embassy about Mr Sabbagh's employment, and it was decided that this employment should continue only until 31 December 1983 to enable the Embassy to make arrangements to replace him. This is why this Department wrote to Mr Sabbagh to explain that he would be able to remain here until that date, but of course, we have no authority to grant any leave to remain for this period".

The employment of the respondent at the Embassy ceased on or before 24 January 1984. The letter from the Home Office of 6 February 1984 stressed that as the employment had ceased, the respondent had no claim to remain in this country, that he should leave the United Kingdom immediately and that he was then liable to deportation. It was said in the letter that if the respondent wished to remain in this country a suitable application should be made as quickly as possible.

On 9 March 1984 on behalf of the respondent the Joint Council for the Welfare of Immigrants applied for leave for him to remain as a student. This was refused on 5 July 1984 and the decision to make the deportation order from which this appeal arises was taken on 27 November 1984. The notice of decision reads:

"You were given leave to enter the United Kingdom on 14 September 1981 for one month subject to a condition prohibiting employment. You were then granted leave to remain until 31 October 1982. Your application for further leave to remain was refused on 12 October 1982 when your stay was extended to 9 November 1982 under the Immigration (Variation of Leave) Order 1976. Your subsequent appeal was withdrawn on 29 July 1983; you were employed at the Embassy of the Syrian Arab Republic from 19 August 1983 until 31 December 1983 during which time you were exempt from the provisions of the Immigration Act 1971. The Secretary of State is satisfied that you have since remained without authority".

Before the adjudicator and before us the primary issue argued was the effect of the respondent's employment at the Syrian Embassy on his liability to deportation. It is only if the respondent remains liable to deportation that the merits become relevant. We therefore deal first, with the question of the respondent's liability to deportation.

The liability of the respondent to deportation

The relevant statutory provisions are set out in the Immigration Act 1971 sections 3(5)(a), 8(3) and (5) which read:

"3(5) A person who is not a British citizen shall be liable to deportation from the United Kingdom --

(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave".

"8(3) The provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as it conferred by that Act on a diplomatic agent".

"8(5) Where a person having a limited leave to enter or remain in the United Kingdom becomes entitled to an exemption under this section, that leave shall continue to apply after he ceases to be entitled to the exemption, unless it has by then expired; and a person is not to be regarded for purposes of this Act as having been settled in the United Kingdom at any time when he was entitled under the former immigration laws to any exemption corresponding to any of those afforded by subsections (3) or 4(b) or (c) above or by any order under subsection (2) above."

Also relevant is HC 169 paragraph 158 which reads:

"158. Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached".

It was accepted by Mr Gillespie that prior to employment at the Embassy the respondent was for some period in this country without leave and was therefore liable to deportation by virtue of section 3(5)(a). On the facts the respondent was not granted any leave subsequent to the employment by the Embassy and the issue before us is whether in these circumstances the respondent remains liable to deportation by virtue of section 3(5)(a).

The adjudicator held that the respondent was not liable, applying and following a statement of the Tribunal in the decision in Noorhu [1984] Imm AR 190. The central issue in that case was whether a notice conferring leave after diplomatic employment complied with the Immigration Appeals (Notices) Regulation 1972. In the course of the determination the Tribunal said (in a passage cited by the adjudicator):

"The power to deport is founded on the Immigration Act, section 3(5) and apart from deportation conducive to the public good and family deportation it is based on the failure to observe a condition of limited leave. It may therefore be arguable that by necessary implication a limited leave must be granted to a person such as the appellant to create the power to deport. Whether this is so or not it appears to us reasonably clear from the statutory framework that unless exempt from the Act or having the right of abode in accordance with the Act a person subject to immigration control requires leave in order to remain in this country. When, therefore, the exemption terminates a prerequisite for a person who is not a British citizen to remain in this country leave so to do".

As the adjudicator said, clearly a word has been omitted from the last sentence which no doubt should read "When, therefore the exemption terminates a prerequisite for a person who is not a British citizen to remain in this country is leave so to do".

In Noorhu the respondent entered diplomatic employment while he had leave to be in this country and the leave expired during the period of the employment. The adjudicator held that this did not distinguish Noorhu from the present case and that as the respondent in this case did not have limited leave, he was not liable to deportation. The adjudicator also did not accept an argument based on HC 169 paragraph 158 (cited above) that while section 8(3) operated the respondent was not here "without authorisation" but immediately the exemption ended the authority ended. The adjudicator held that the Act must prevail and that in effect the Act requires leave to be granted after the cessation of the exemption in order for an individual to be liable to deportation by virtue of section 3(5)(a).

As was accepted by and before the adjudicator, the issue in Noorhu was not that of deportation. Further, subsequent to Noorhu (and to the hearing before the adjudicator in this case) the Tribunal in Idrish [1985] Imm AR 155, accepted that a person may be in this country without leave if "authorised" to be here. Such authorisation may be through statutory provisions or express or implied permission by the Secretary of State. Whether there is such authorisation depends on the facts of each case. It was not argued before us that there was any authorisation in this case within the meaning of Idrish and in our view that is clearly right.

Even if there was authorisation we agree with the adjudicator that the issue in this case is whether the respondent is within section 3(5)(a) in that he is a person "having only a limited leave to enter or remain" he has remained beyond the time limited by the leave. As the adjudicator said, the statutory requirement is that the appellant has had limited leave. Authorisation cannot take the place of leave for the purposes of section 3(5)(a) but, in accordance with HC 169 paragraph 158, may prevent liability in deportation in the sense that a person having had limited leave and that leave having ended, he is nevertheless authorised to remain in this country. (See Idrish).

We see four possible hypotheses in considering the liability to deportation of a person who is or has been in diplomatic employment and therefore exempt from the Act by virtue of section 8(3):

(i) a person when admitted to this country is within section 8(3) and therefore exempt

(ii) a person becomes exempt during the currency of limited leave which expires during the period of the exemption (as in Noorhu)

(iii) a person becomes exempt during the currency of leave and the leave remains current after the exemption ends (a situation covered by section 8(5))

(iv) a person has had limited leave but that leave has expired prior to an exemption and no further leave is conferred after the exemption (as the respondent in this case).

We think that the immigration consequences of the circumstances posed in (i) and (iii) above are clear. First, in the circumstances posed in (iii) section 8(5) provides that the pre-exemption leave continues when the exemption ends. There is, therefore, no liability to deportation by virtue of section 3(5)(a).

In relation to (i) above, it seems clear to us that because the pre-requisite for liability to deportation by virtue of section 3(5)(a) is having had limited leave a person who is exempt from the Act by virtue of diplomatic employment on entry and has at no time been granted limited leave is not liable to deportation by virtue of section 3(5)(a).

The circumstances outlined in (ii) and (iv) above both raise the question of the liability to deportation of a person emerging from a period of exemption without leave to remain in this country. In the case before us ((iv) above) where the appellant was an overstayer before exemption, we think that Mr Gammons is right in his argument that exemption at the most, leaves a person when the exemption ends as he was when it started. We do not think that exemption is intended to operate retroactively so as to wipe out the consequences of immigration control which existed prior to the exemption. Exemption is the removal from the Act for the period of the exemption and nothing more.

We think this conclusion supported by general principle in that normally the responsibility must rest on a person seeking to remain to obtain authority to remain. Becoming exempt does not remove that responsibility and there does not seem to us any reason why the obligation should not be on a person who having overstayed and then becoming exempt to ensure that at the end of the exemption he has leave or has applied for leave.

Both Mr Gammons and Mr Gillespie sought to draw analogies -- Mr Gammons to the proposition that the granting of subsequent leave does not negate breaches of previous leave and Mr Gillespie first, to the linking of deportation by virtue of section 3(5)(a) to current leave and secondly, to the acquisition of British citizenship. With respect we do not see the construction of the effect of exemption as linked to the effect of subsequent leave on earlier leave or the linking of leave to the liability to deportation. We see the issue as a direct question of construction of the provisions of the Act removing a person from immigration control. Nor do we accept the analogy of exemption to that of acquisition of citizenship -- the first is essentially an exemption (by definition not intended to last for life) from provisions otherwise applicable: the second is the acquisition of a status intended to be permananent unless relinquished, removing the holder from the ambit of the Act altogether.

Mr Gillespie sought to rely on section 8(5) as showing that the immigration status at the start of exemption is not automatically resurrected after the ending of the exemption. However, we agree with Mr Gammons that section 8(5) envisages the need for continuity of leave. We read the provision as necessarily implying that without express statutory provision an exemption would terminate leave. There would otherwise be no need to provide that leave in existence prior to the exemption should continue after it.

The express provision that prior leave is to continue does not mean, as Mr Gillespie argued, that it requires express provision for "no leave" to continue. To read the implication of the provision in this way would be to ignore the central feature of immigration control -- the requirement of leave. On the contrary the express provision simply ensures that pre-exemption leave comes back into operation after the exemption ends. Where there is no pre-exemption leave, once the exemption ends there is still no leave. There is no grant of leave and there is no statutory provision conferring it.

It follows that the respondent in this case is a person who, having had limited leave has remained beyond the time limited by it. He is therefore liable to deportation.

The difficult problem with this construction is the consequence of exemption on leave which expires during the exemption ((iii) above). If we are right in our construction of section 3(5)(a) and the effective exemption on leave to remain in this country, it must follow that such a person is strictly liable to deportation once his exemption terminates. However, we do not see this as inconsistent with the immigration structure. Nor do we see it as unreasonable to place the responsibility of applying for leave on a person who has leave, becomes exempt and who in the normal case can be expected to appreciate that he needs leave to remain once his exempt status ends.

There seems to be a lacuna in the Act in that no provision appears to be made for an appeal against the refusal of leave following an exemption. The Variation of Leave order would apply only if application was made prior to the termination of the leave current when the exemption started. But if anything, this lacuna leads us towards our conclusion and not away from it. The wording of section 14(2) makes an appeal to vary leave dependent on the granting of leave after exemption. This clearly implies the necessity of leave to be granted after exemption unless pre-exemption leave continues.

We are of course concerned in this case not with variation of leave but with liability to deportation. We appreciate that as a result of our decision, it may appear harsh that an individual may be liable to deportation immediately on ceasing to be exempt even though he had leave when he became exempt. However, as we say, such a person would normally be taken to know of his immigration status and indeed any decision to deport is always subject to an assessment of the public interest and a consideration of all the relevant factors (see Idrish).

We therefore agree with the view canvassed in Noorhu that the granting of limited leave is a necessary pre-requisite for a decision to make a deportation order to be made under section 3(5)(a). However, after hearing argument on the point we feel that this requirement is met by the grant of such leave either before or after an exemption. In this case, in our view, the respondent was liable to deportation on the ending of his exemption when he left the employment of the Syrian Embassy.

The merits of the case

We are directed by the immigration rules to consider all relevant factors including those specified in HC 169 paragraph 156. These factors are:

"age;

length of residence in the United Kingdom;

strength of connections with the United Kingdom;

personal history, including character, conduct and employment record;

domestic circumstances;

the nature of the offence of which the person was convicted.

previous criminal record;

compassionate circumstances;

any representations received on the person's behalf".

On the merits the adjudicator said;

"I cannot see that the respondent's discretion should have been exercised differently. The appellant has not been in this country for any great length of time and it is not suggested that he ever had any reason to believe that he could remain indefinitely. On the contrary, his applications for extensions were always for temporary purposes. I have no information as to how he has been occupying and supporting himself recently. I do not know whether he has any connections in the United Kingdom, or whether there is any reason why he should not return to Syria. He appears to be of good character, but that alone would not permit of the normal course of deportation being departed from".

Before us Mr Gillespie said that he did not wish to make any submissions on the subject of compassionate circumstances. We note that the respondent's representative before the adjudicator did not call the respondent to give evidence before the adjudicator. Mr Gillespie did not draw our attention to any particular factor weighing against the normally proper course of deportation when a person overstays.

At the date of decision the respondent was 35 years of age and a single man. The period of his stay in this country was not lengthy and there is no evidence of any connections with this country. He was given ample opportunity to leave the country voluntarily and as we say, no evidence has been placed before us to persuade us that the normally proper course of deportation should not take place.

DISPOSITION:

Appeal allowed

SOLICITORS:

Joint Council for the Welfare of Immigrants