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Halil and Another v. Davidson

HALIL AND ANOTHER v DAVIDSON, TH/2390/76

House of Lords

[1979-80] Imm AR 164

Hearing Date: 11 June, 3 July 1980

3 July 1980

Index Terms:

Appeal -- Right of appeal -- Application for variation of "limited leave" -- Application for extension of 12 months made after expiry of extension previously granted -- Refusal of application by notice (Form APP 101) -- Refusal "varied" applicants' "leave to enter" by extension of one month "for the purpose only of enabling (them) to make arrangements to leave this country" -- Notice also stated that applicants were entitled to appeal -- Appeal lodged -- Whether adjudicator right to rule that appeal had no standing and he no jurisdiction to entertain it -- Suthendran's Case ([1977] A C 359; [1977] Imm. A R 44) followed -- Bhanji's Case ([1977] Imm A R 89, CA) considered -- Immigration Act 1971, s 14(1).

Jurisdiction -- Application for variation/extension of "limited leave to remain" made after expiry of extension previously granted -- Refusal of application -- Notice of refusal (Form APP 101) stated that applicants entitled to appeal -- Whether adjudicator right to rule that appeal had no standing and that he had no jurisdiction to entertain it -- Suthendran's Case ([1977] A.C. 359; [1977] Imm. A.R. 44, HL) followed -- Bhanji's Case ([1977] Imm. A.R. 89, CA) considered -- Immigration Act 1971 s 14(1).

Held:

In the case which is reported below the Judicial Committee of the House of Lords held that an adjudicator had been right when he held that a purported appeal to him lodged by Cypriot citizens, a husband and wife, (following the refusal of their applications for extension of stay made after the expiry of their previous limited leave to remain in this country), had no standing and that he had no jurisdiction to entertain it. The case, said LORD RUSSELL OF KILLOWEN, was fully covered by the decision of their Lordships' House in Suthendran v Immigration Appeal Tribunal, [1977] A C 359, [1977] Imm A R 44.

R v Immigration Appeal Adjudicator, ex p Bhanji ([1977] Imm A R 89 (CA), considered.

Introduction:

The facts are set out in the speech of LORD RUSSELL KILLOWEN.

Counsel:

Louis Blom-Cooper QC for the appellants.

Simon Brown and David Latham for the respondent.

Judgment-READ:

3 July 1980. The following opinions were delivered.

[1979-80] Imm AR 164

PANEL: Lord Wilberfore, Viscount Dilhorne, Lord Salmon, Lord Fraser of Tullybelton and Lord Russell of Killowen

Judgment One:

LORD WILBERFORCE. My Lords, I have had the benefit of reading in advance a print of the speech to be delivered by my noble and learned friend, Lord Russell of Killowen. I agree with it and would dismiss the appeal.

Judgment Two:

VISCOUNT DILHORNE. My Lords, I have read in draft the speech of my noble and learned friend, Lord Russell of Killowen. I agree with it and for the reasons he gives, would dismiss the appeal.

Judgment Three:

LORD SALMON. My Lords, I entirely agree with the speech of my noble and learned friend, Lord Russell of Killowen, and for the reasons which he gives, I would dismiss the appeal.

LORD FRASER OF TULLYBELTON

Judgment Four:

LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Russell of Killowen. I agree with it, and for the reasons stated by him I would refuse this appeal.

Judgment Five:

LORD RUSSELL OF KILLOWEN. My Lords, The relevant facts in this case may be briefly stated. The appellants are Turkish Cypriots. They originally arrived in the U.K. on 14 December 1971 and were given limited leave to enter and remain for one month as visitors subject to a condition prohibiting employment. There were subsequent extensions of that leave until 14 June 1972 and a further variation extending it to 14 June 1973, the first appellant being permitted so to remain as a student. In 1973 the first appellant applied for a further extension which in November 1973 was refused. On 21 June 1974 a further application was made and was refused on 13 August 1974, but later having regard to the troubled situation in Cyprus the application was reconsidered and leave was granted on 3 April 1975 to the first appellant to remain until 3 July 1975 and to take employment. (Throughout, the right of the second appellant to remain depended on that right of the first appellant.) From 3 July 1975 neither appellant had any subsisting leave or right to remain in the U.K.

On 7 August 1975, at a time when no limited leave was in existence, the appellants applied for leave to remain for at least 12 months in view of the situation in Cyprus. On 12 February 1976 the Secretary of State refused that

[1979-80] Imm AR 164

application on the then currently used form APP101, which was headed "Refusal to revoke or vary leave to enter". In the body of the notice it was stated:

"The Secretary of State therefore refuses your application. 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 U.K. until 12th March 1976. No further extension of stay will be granted."

The notice stated that they were entitled to appeal against the decision made under s 14(1) of the Immigration Act 1971 n1 and invited completion of the attached notice of appeal and return to the Home Secretary within 14 days. On 23 February 1976 an appeal to the adjudicator was lodged.

n1 Section 14(1) provides that, subject to the provisions of other parts of Part II of the Act (which deals with 'Appeals' and 'the appellate authorities'), "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;..."

My Lords, it has been decided by this House in the Suthendran case n2 that a notice in this form is misconceived: it has since been altered. The basic reason was that there was no power conferred upon the Secretary of State to vary a limited stay permission after it had expired: I need not trouble your Lordships with the reasons for that decision, or any analysis of the statutory provisions, which are to be found in the report of that case. As I there pointed out, on an application in terms to vary a permission which had already expired, the Secretary of State would no doubt be able to treat it as an application for leave de novo to remain for a period in the U.K.: but a refusal would not be appealable to the adjudicator.

n2 Suthendran v Immigration Appeal Tribunal, [1977] AC 359; [1977] Imm A R 44; [1976] 3 All ER 611.

To conclude the course of the present case the adjudicator disclaimed jurisdiction to entertain the appeal: and the Divisional Court and the Court of Appeal refused certiorari. I suggested in the Suthendran case n2 that the "time to pack up", one month in the form APP101, which was in the same form as in the instant case, might be regarded as a de novo grant of limited leave to remain. But even so it would not avail the appellants, nor the appellant in Suthendran. The difficulty in which the appellants find themselves in this appeal is this. Either the form APP101 was a refusal to grant de novo leave to remain: in which case no appeal therefrom lay to the adjudicator. Or the form APP101 is to be taken to be a grant de novo of one month's limited leave to remain: in which case as pointed out in Suthendran an application to vary that grant if promptly made and equally promptly refused would have permitted appeal to the adjudicator from that refusal to vary: but no such application was made. Or the form APP101 conferred no rights on the appellants and deprived them of no rights.

n2 Suthendran v Immigration Appeal Tribunal, [1977] AC 359; [1977] Imm A R 44; [1976] 3 All ER 611.

In my opinion the adjudicator was plainly right in holding that the appeal to him had no standing and he no jurisdiction to entertain it. The case is fully covered by the decision of your Lordships' House in Suthendran. Counsel for

[1979-80] Imm AR 164

the appellants candidly admitted that he could not improve on his submissions in paragraph 19 of the appellants' case. I have read them and will not set them out. It suffices to say that they in fact run counter to the decision in Suthendran.

I wish, however, to comment upon two matters. The first is on the fact that the Court of Appeal for some reason which would seem to be wholly without sound foundation, gave leave to appeal to this House. The Record contains no note of their judgment, nor of any discussion on leave to appeal. The result of giving such leave is that considerable extra expense has been incurred, and considerable extension has been involved in the time that the appellants have remained in this country without any right to do so. In my opinion leave to appeal should not have been given.

The second point I would mention concerns the case of Bhanji n3. There it was said by LORD DENNING MR, with whom LANE and CUMMING-BRUCE LJJ briefly agreed, that the "time to pack up" leave given by form APP101 could not be taken as a leave de novo but only as a permission to remain as an indulgence, and not a leave. I note that it would have made no difference in that case (as in Suthendran and the instant case) had it been regarded as a de novo grant of leave to remain, for no application had been made to vary that grant followed by appeal from refusal to vary it. I incline to adhere to my view that the form APP101 could be construed as a de novo grant of leave to remain: but I think that with the alterations made in the administrative methods adopted, the point is by now of purely academic interest.

Accordingly I would dismiss this appeal.

n3 R v Immigration Appeal Adjudicator, ex p Bhanji, [1977] Imm A R 89 (CA).

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Bernard Sheridan & Co, WCI, Treasury Solicitor.

Topics: Right of appeal,