Suthendran v. Immigration Appeal Tribunal [1976] UKHL 8

House of Lords
Between
SuthendranAppellantImmigration Appeal TribunalRespondent
Before
Lord WilberforceLord KilbrandonLord Denning Viscount DilhorneDate 27 October 1976
Immigration - Deportation - Expiration of leave to remain in United Kingdom - Variation of leave - Refusal of application to vary leave - Appeal pending - Applicant not to be deported so long as appeal pending - Applicant who has a limited leave to enter or remain in the United Kingdom - Applicant's leave having expired before application made for further period of leave - Whether applicant immune from deportation until application determined and appeal procedure exhausted - Immigration Act 1971, s 14(1).Held:Notes:Cases referred to in the Judgment:Introduction:Counsel:Judgment-READ:Judgment One:
'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.'
'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.'
'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...'
'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 restructing his employment or occupation in the United Kingdom, or requiring him to register with the police, or both.'
'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...'
'(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either --(i) remains beyond the time limited by the leave; or(ii) fails to observe a condition of the leave...' Neither of these provisions can be said to be well drafted. 'Having only a limited leave... remains beyond the time limited by the leave' requires the sentence to be construed as if it had said 'Having had a limited leave'.Judgment Two:Judgment Three:'In the case of a limited leave to enter or remain in the United Kingdom... a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions...' In my opinion, this provision is not applicable to a limited leave which has expired and no longer has any operation: the Secretary of State has no powers in relation to such a former limited leave. He has in such a case a power to give de novo a leave to remain, and in the case of an application to vary an expired limited leave by extension he will no doubt treat the application as an application for the grant of leave to remain; though I observe that there is no right of appeal from a refusal to grant such leave to remain. The opinion expressed in this paragraph is fatal to the appeal: for the appellant's limited leave to enter (and remain) had expired long before even his application to vary it by extension was made. Accordingly, his purported appeal to an adjudicator under s 14(1) from a refusal to vary had no standing, there being no power in the Secretary of State to vary the defunct limited leave.
'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 Kindom until 17th July 1975. No further extension of stay will be granted.'
DISSENT By-1: LORD WILBERFORCE.DISSENT-JDGMT-1:DISSENT By-2: LORD KILBRANDON.DISSENT-JDGMT-2:DISPOSITION:SOLICITORS: