DS v ENTRY CLEARANCE OFFICER, MUMBAI

The appellant, a citizen of India born on 17 October 1956, applied on 11 May 2007 for entry clearance to the United Kingdom for the purpose of undertaking work permit employment. On 4 June 2007 the respondent decided to refuse the appellant’s application. The appellant purported to appeal against that decision and on 13 December 2007 the matter came before an Immigration Judge, sitting at Nottingham. The Immigration Judge concluded that, contrary to the submissions made on behalf of the respondent, the appellant had a right of appeal to the Tribunal against the decision in question. The Immigration Judge further found that the appellant met the relevant provisions of the Immigration Rules and he therefore concluded his determination by allowing the appellant’s appeal.

On 24 January 2008 reconsideration of the Immigration Judge’s decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002, on the application of the respondent, who contended that, since the appellant’s work permit had expired before the date of the immigration decision, section 88(2)(b) of that Act precluded the appellant from having a right of appeal because the appellant did not have “an immigration document of a particular kind (or any immigration document)”. The respondent submitted that, in finding that the expired work permit of the appellant could potentially be re-issued or reprinted, the Immigration Judge had indulged in speculation. In any event, the fact was that, as at the date of decision, the work permit had expired and was not a valid document.

The appellant’s work permit was issued on 20 November 2006. An application for entry clearance, based on that work permit, was refused by the respondent on 13 March 2007; essentially on the basis that insufficient evidence had been provided by the appellant to enable the respondent to be satisfied that the appellant met all of the requirements of paragraph 128 of the Immigration Rules.

The appellant did not appeal against that decision. Instead, on 11 May 2007 he made a fresh application for entry clearance. According to the respondent, however, the appellant’s work permit had expired on 20 May 2007, some fifteen days before the decision against which the appellant purported to appeal.

The notice of decision in response to that fresh application states that the respondent was not satisfied that the appellant’s proposed employer would in reality be able to pay the appellant the £20,000 per annum salary indicated on the appellant’s work permit, given that the evidence showed that the proposed employer was overdrawn by some £29,168. The respondent was, accordingly, not satisfied that the appellant had disclosed all material facts for the purpose of obtaining the work permit.

The notice then says:-

“Your Work Permit was issued on 20/11/06. On the reverse of the Work Permit, it clearly states that it ‘ceases to be valid if not produced to the Immigration Officer at the Port of Arrival in the UK within six months of issue’ … It has now been almost seven months since your Work Permit was issued. As such, you do not hold a valid Immigration Employment Document.”

Somewhat surprisingly, in view of the stance adopted on behalf of the respondent before the Immigration Judge, the notice of decision stated that the appellant was “entitled to appeal against this decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002”. An appeal form was said to be provided with the notice of decision.

Following receipt of the appellant’s notice of appeal, an Entry Clearance Manager reviewed the matter. So far as financial matters were concerned, the Entry Clearance Manager noted that the appellant had asserted that “I will be able to support myself” but that this assertion had not been substantiated by documentary evidence. Nor was the Entry Clearance Manager satisfied that the appellant “has addressed the validity concerns of paragraph 2 of the refusal notice”. The appeal review statement indicates that the decision to refuse was made by reference to paragraphs 128 and 320(15) of the Immigration Rules. Those provisions read as follows:-

“128.

The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules or is eligible for admission as a seaman under contract to join a ship due to leave British waters) are that he:

(i)

holds a valid Home Office work permit; and

(ii)

is not of an age which puts him outside the limits for employment; and

(iii)

is capable of undertaking the employment specified in the work permit; and

(iv)

does not intend to take employment except as specified in his work permit; and

(v)

is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; and

(vi)

in the case of a person in possession of a work permit which is valid for a period of 12 months or less, intends to leave the United Kingdom at the end of his approved employment; and

(vii)

holds a valid United Kingdom entry clearance for entry in this capacity except where he holds a work permit valid for 6 months or less … or he is a British National (Overseas), a British protected person or a person who under the British Nationality Act 1981 is a British subject.

320.

In addition to the grounds for refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:

…

(15)

whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;”

Section 88 (ineligibility) of the 2002 Act reads as follows:-

“88.

(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e).

(2)

A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant –

(a)

does not satisfy a requirement as to age, nationality or citizenship specified in Immigration Rules,

(b)

does not have an immigration document of a particular kind (or any immigration document),

…

(3)

In subsection (2)(b) ‘immigration document’ means –

(a)

entry clearance,

(b)

a passport,

(c)

a work permit or other immigration employment document within the meaning of section 122, and

(d)

a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(4)

Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).”

Section 122 (fee for work permit, &c), as in force at the relevant time, provides:-

“(1)

The Secretary of State may by regulations require an application for an immigration employment document to be accompanied by a fee prescribed in the regulations.

(2)

In subsection (1) ‘immigration employment document’ means –

(a)

a work permit, and

(b)

any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave or enter to remain in the United Kingdom.

…

(6)

In this section –

‘immigration rules’ has the meaning given by section 33(1) of the Immigration Act 1971 (c.77) (interpretation), and

‘work permit’ has the meaning given by that section.”

Section 33(1) of the Immigration Act 1971 provides that a:-

The following features of the appellant’s work permit are relevant. The date of issue was 20 November 2006. The “Period Covered by Permit” was “60 months from the date of leave to enter”. Endorsed on the permit were a number of conditions governing its issue. Paragraph 3 of those conditions reads:-

“3.

This permit:

(a)

does not constitute any obligation upon the Immigration Officer to give the holder leave to enter the United Kingdom, nor any obligation on the Entry Clearance Officer to issue the visa.

(b)

may be used only by the person named thereon. If an unauthorised person amends the particulars upon the permit it will thereby be rendered invalid.

(c)

ceases to be valid if not produced to the Immigration Officer at the port of arrival in the United Kingdom within six months of the date of issue.

(d)

is valid only for the particular employment for which it is issued and not for employment of another kind or with another employer, except supplementary employment. Supplementary employment is permitted in line with conditions outlined in the guidance notes for employers. Multiple Entry Work Permit (MEWP) holders and Training and Work Experience Schemes (TWES) work permit holders are not permitted to take up supplementary employment.

(e)

must be produced intact, together with a valid passport or other identity documentation, endorsed where appropriate with a United Kingdom visa, or entry clearance, to the Immigration Officer at the port of arrival in the United Kingdom by the person named thereon. Thereafter, it should be carefully preserved, with their passport, by the holder for presentation to the competent authorities as and when necessary …”.

The Home Office’s Border & Immigration Agency has published a document entitled “WORK PERMITS - BUSINESS AND COMMERCIAL - Guidance for Employers 19 November 2007 – 13 March 2008”. Under the heading “Section 5 – Immigration”, we find:-

“184.

If the person needs a visa, or any other form of entry clearance they must apply to their nearest British diplomatic post in their country of residence within six months from the date of issue of the work permit.

…

186.

The original permit must be produced to support the visa application (photocopies are not usually accepted). Work permits are valid for six months from the date we issue them.”

Under “Section 6 – Frequently Asked Questions”, the guide explains in what circumstances a reprint of a work permit can be requested. Amongst the circumstances specified are the following:-

“Requesting reprints of work permits Issued over six months ago.

The issue of whether there was a valid appeal to the Tribunal was raised by the Presenting Officer at the hearing before the Immigration Judge. Having heard submissions, the Immigration Judge concluded as follows:-

“6.

I made the following decision. The Appellant sought entry clearance in compliance with paragraph 184 of the guidance notes. The work permit has now expired. It is plain from the work permit section of the Border & Immigration Agency guidance rules that a work permit will be reprinted or re-issued. It is not necessary to apply afresh for a work permit. This is subject to compliance with showing evidence of delay. Section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002 requires the Appellant to have an immigration document of a particular kind or any immigration document. Clearly a work permit which is dead would not constitute such a document. The issuing authority has however by its approach conferred the status on the expired work permit of simply rendering it dormant since it can be revived in the form of being reprinted if evidence of delay is provided and accepted. The Appellant therefore was in possession of a document in the form of an expired work permit at the time of the appeal. This was a document of potentiality in that it can be reprinted. It represented a dormant position not one which had expired completely. Thus Section 88(2)(b) is satisfied as the Appellant had an immigration document of a particular kind or any immigration document. An ex-post facto decision not to reprint does not alter the current dormant status of the expired work permit. In the alternative I apply a purposive construction in holding that the duality of the system involving work permits being granted and entry clearance requirements being satisfied may well involve a chronological difficulty and without a purposive construction an appeal could not proceed.

13.

… I find that the expired work permit which was held by the Appellant at the date of the decision to refuse is in fact a dormant document capable of revival in the form of reprinting or re-issue. It is not a deceased document. It is capable of revival. As such it remains a document. This is what is required for the purposes of launching an appeal. The guidance notes attached to the file illustrate the process which must be undergone to achieve revival. Conditions must be met. Even if those conditions as described are not met an ex-post facto decision by WPUK not to revive the expired but dormant work document cannot alter the status of the document at the time of this appeal. The guidance notes clearly demonstrate the procedure for reviving the expired work permit by bringing about its reprinting or re-issue and this document will be presented to the Immigration Officer at the port of arrival. It will be necessary for this to take place within six months of issue or of re-issue or reprinting. If this in fact is an incorrect interpretation of the Rule referred to by the respondent the entire approach adopted by WPUK is in error. That would be extraordinary. I do not find that that is the case. All the matters raised by the Respondent have been resolved. All the requirements of the Rules are met”.

The last two sentences of paragraph 13 of the determination are a reference to the Immigration Judge having found, on the evidence before him, that the proposed employer would be in a position to pay the appellant the stated salary of £20,000 per annum.

I consider that the Immigration Judge was wrong in law to interpret section 88(2)(b) of the 2002 Act as he did. The Immigration Judge’s attention does not appear to have been drawn to the definition of “work permit” in section 33(1) of the 1971 Act (paragraph 11 above). There we find that a work permit is a permit indicating that a person named in it is eligible (my emphasis) for entry into the United Kingdom for the purpose of taking employment. As at the date of the immigration decision in this case, it was manifest that the work permit had ceased to be valid. It was still in India, in the hands of the Entry Clearance Officer and had not been “produced to the Immigration Officer at the port of arrival in the United Kingdom within six months of the date of issue” (condition 3(c); paragraph 12 above). In order for something to be a work permit within the meaning of section 33(1), it must be capable of conferring on its holder eligibility for entry to the United Kingdom. If it does not do so, at the time when it falls for consideration (here, the date of the decision by the respondent), then it is not an immigration document for the purposes of section 88(2)(b) of the 2002 Act.

The Immigration Judge’s reliance on what might be called the concept of dormancy was, I find, misplaced. As can be seen from the extracts from the guidance notes, there are conditions attached to the reprinting of a work permit, which the holder may or may not be able to satisfy. The logic of the Immigration Judge’s position would mean that at least some kinds of invalid passport or equivalent documents would be sufficient for the purposes of section 88(3)(b) and (d). It cannot have been the intention of Parliament, so to restrict the operation of section 88 as to confer rights of appeal on persons producing expired or otherwise invalid passports. To dilute the test of what constitutes a valid document in the way envisaged by the Immigration Judge would, for example, lead to an assertion that a foreign passport which had expired was merely “dormant” because, according to the laws of the country concerned, it might be revived by some future action on the part of its holder. Such a construction would place an unwarranted burden on the system of United Kingdom immigration controls.

I am reinforced in this view by the recent determination of the Tribunal in MC (s 88: meaning of “a passport”) [2008] UKAIT 00030, where, in relation to an application for entry clearance, the expression “a passport” in section 88(3)(b) was held to mean a valid passport satisfactorily establishing the holder’s identity.

In the present case, the Immigration Judge’s reliance on the concept of dormancy leads to the following further difficulty. Given that the Immigration Judge purported to allow the appeal outright, he must have been satisfied that the requirement of paragraph 128(i) of the Immigration Rules was met, as at the date of decision; that is to say, that the appellant held a valid work permit. But, if that is so, then it is difficult to see how the appellant could ever be expected to “re-awaken” his dormant work permit by obtaining a reprint of it. Indeed, rather than seek such a reprint, and be refused, which the Immigration Judge apparently considered would terminate the dormant status of the work permit, a person in the position of the appellant would need to do nothing at all to regularise his position.

The Immigration Judge appeared to consider that, unless his construction of the relevant legislation, or at least something like it, was adopted, the procedure for obtaining entry clearance by reference to a work permit would be unworkable. That, however, is not the case. On the contrary, paragraphs 219 to 224 of the guidance document provide mechanisms that are designed precisely to ensure that the systems of work permits and entry clearance can operate together. The Immigration Judge placed undue emphasis upon paragraph 184 of the guidance, which states that a person who needs a visa should apply for entry clearance within six months from the date of issue of the work permit. In the present case, the chronology shows that the appellant made his latest application for entry clearance only nine days before his work permit expired. In the nature of things, the respondent cannot possibly be criticised for failing to reach a decision on the application within nine days. On the contrary, the sensible course for the appellant would have been to have waited until the work permit had expired and then sought a reprint in pursuance of paragraph 220 of the guidance, citing the delay in obtaining entry clearance that had been occasioned, not by any tardiness on the respondent’s part, but wholly or mainly because the appellant had seen fit to make an earlier work permit entry clearance application, which he acknowledged had been doomed to failure. In his application of 11 May 2007, the appellant stated:-

“The ECO was correct in his [earlier] decision, because we had not provided with any documents of support for our accommodation and maintenance by my sister. In order to rectify our mistake, we have decided to make new application”.

In the circumstances, therefore, the Immigration Judge was wrong to consider that, whether by reference to the appellant’s application or more generally, he was required to adopt a highly problematic interpretation of the relevant legislation, in order to do justice. In this regard, it is relevant to record that Ms White helpfully informed me on 19 March 2008 that the appellant has apparently now obtained a new, valid work permit.

The Immigration Judge made a material error of law and I accordingly substitute for his decision, a decision of my own, formally dismissing the appeal for want of jurisdiction.