Tribunal decisions

The decision

YL YL SN (Abandonment - Work-Permit Holders’ ILR) China [2004] UKIAT 00083

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 31st March 2004
Determination delivered orally at Hearing
Date Determination notified:
.26 April 2004

Before:

Mr C M G Ockelton (Deputy President)
Mr J Barnes (a Vice President)
Mr L V Waumsley (a Vice President)

Between:

APPELLANTS

and

Secretary of State for the Home Department
RESPONDENT

DETERMINATION AND REASONS

1. The Appellants, who are citizens of China, appeal, with permission, against the determination of an Adjudicator, Mr J P McClure, dismissing their appeals against the decision of the Respondent Secretary of State on 22nd June 2000 refusing them indefinite leave to remain in the United Kingdom. Before us today, the Appellants are represented by Mr de Mello, instructed by Christine Lee & Co, and the Respondent is represented by Mr Deller. We are very grateful to them both for their assistance in this rather complex appeal.

2. The basis of the Appellants’ claim is that the principal Appellant, Mr Yeun Oi Lee, has been employed in the United Kingdom under the provisions of the Work Permit Scheme for such a period as ought to have entitled him under paragraph 134 of the Immigration Rules to indefinite leave to remain. That paragraph reads as follows:

“134. Indefinite leave to remain may be granted on application to a person admitted as a work permit holder provided:
(i) he has spent a continuous period of four years in the United Kingdom in this capacity;
(ii) he has met the requirements of paragraph 131 throughout the four year period; and
(iii) he is still required for the employment in question as certified by his employer.”

3. There have been a considerable number of subsidiary arguments in this appeal but we may condense the relevant facts to the following. The principal Appellant was indeed admitted to the United Kingdom as a work permit holder. The work permit was issued in August 1992 and he was admitted on 28th December 1992. The period of the work permit was thirty-six months and he was therefore given leave to enter until 28th December 1995. There was then a period during which he had no work permit but he was issued with a further three-month work permit and there was consequential leave to remain as a work permit holder which expired on 26th April 1996, that apparently being as a result of a decision of the Secretary of State on 26th January 1996 to allow the extension.

4. There was then a period whose precise status is uncertain; but it is accepted by Mr de Mello on behalf of the Appellants that there was no continuous period of four years as a work permit holder before 22nd June 2000. The reason for the importance of that date is of course that it is the date of the Secretary of State’s decision giving rise to this appeal. On behalf of the Appellant, Mr de Mello has argued that the date of 22nd June 2000 is not crucial. He argued first that the way the Rule is framed shows that what is of importance is not the date of the Secretary of State’s decision but the date of the Adjudicator’s determination of any appeal from that decision; and secondly that issues of foreseeability should be part of the process of determination, bearing in mind that the period of four years (or indeed any period) is a period which is foreseeably more likely to be fulfilled as time passes. In fact, as we have heard during the course of the hearing, the Appellant has now been granted further leave to remain as a work permit holder. That leave was granted in 2003 and is for five years expiring some time in 2008.

5. On the basis of that last fact, Mr Deller’s argument is that the appeal to the Tribunal has been abandoned. The reason for that is in Mr Deller’s submission as follows. This appeal is an old appeal brought under the provisions of section 14 of the 1971 Act. The Immigration and Asylum Act 1999 (Commencement No 6) (Transitional and Consequential Provisions) Order 2000 (SI 2000/2444) contains the following provisions in Articles 3 and 4:

“3. Transitional provisions

(1) Subject to Schedule 2 -
(a) the new appeals provisions are not to have effect in relation to events which took place before 2nd October 2000 and, notwithstanding their repeal by the provisions of the 1999 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events;
(b) the new procedural provisions are to apply to appeals under the old appeals provisions as well as the new appeals provisions; and
(c) references in the new procedural provisions to the new appeal rights (however expressed) are to be construed as including a reference to the equivalent provision of the old appeal rights.”

In Article 4, the “new appeals provisions” are defined in such a way as to include the principal appeal provisions of the 1999 Act, but the “new procedural provisions” are defined as follows in Article 4(1)(c):

“(i) subsections (5) to (10) of section 58 of the 1999 Act; and

(ii) paragraphs 6 to 8 and 21 to 24 of Schedule 4 to the 1999 Act.”

6. Mr Deller conceded that the application of subsections (5) to (10) of section 58 of the 1999 Act might not be entirely apposite because, as he pointed out, there are circumstances in which a person could appeal under section 14 but could not appeal under the equivalent provisions in the 1999 Act. But we are assisted in addition by paragraph 1(3) of Schedule 2 to the Order, which reads as follows:

“Subsections (5) to (10) of section 58 (pending appeals) are to apply to appeals under Part II of the 1971 Act, section 8 of the 1993 Act and section 3 of the 1996 Act as they do to appeals under Part IV and –
(a) references to "this Part" are to be construed accordingly; and
(b) when an appeal is made under section 14 of the 1971 Act, the reference to section 61 in subsection (10) of section 58 is to include a reference to section 14 of the 1971 Act.”
7. In our view, those provisions put it beyond doubt that the grant of further leave to remain to the present Appellants has caused their appeals to be abandoned. It follows that we have no jurisdiction to decide any further issues but in deference to the arguments that have been put to us we give our views on them.
8. As we think Mr de Mello essentially accepted, his submissions supporting the Appellants’ case depend on a construction of paragraph 134 which is of the utmost difficulty. It is clear from the words of that paragraph that indefinite leave to remain is to be granted only to a person who has spent the period of four years in question. It is quite extraordinarily difficult to see why those words should be interpreted so as to imply either foresight of the completion of the period of four years after the date of the decision or indeed to refer to a period expiring not at the date of the potential grant, but at the date of some future decision by an Adjudicator. We therefore hold that paragraph 134 applies only to a person who, at the date of the decision, has spent the continuous period of four years as required by that Rule.
9. We would if we needed to do so, however, reject Mr Deller’s submission that the period of four years must already have been passed by the date of the application. It is clear that the Secretary of State has, under paragraph 134, no obligation to convert limited leave as a work permit holder to indefinite leave to remain without an application being made. But we do not read paragraph 134 as implying any conditions which must be fulfilled before the application is made. What is clear (as appears from the history of this appeal) is that if the application is made too early, it may be refused inevitably because the four years has not passed by the date of the decision. That may affect the applicant’s future status in the United Kingdom.
10. However that may be, so far as this appeal is concerned, if it were before us we should have dismissed it for the reasons we have given on the interpretation of paragraph 134. But, for the reasons given earlier, we consider that the appeal is not before us.

C M G OCKELTON
DEPUTY PRESIDENT