Halil & Anor v Davidson [1980] UKHL 13

Turkish Cypriot appellants whose limited leave to remain had expired attempted to appeal against refusal of further leave. The House of Lords held the adjudicator had no jurisdiction as no valid leave existed to vary. Appeal dismissed following Suthendran.

Facts

The appellants were Turkish Cypriots who arrived in the UK on 14 December 1971 with limited leave to enter as visitors for one month, subject to a condition prohibiting employment. Their leave was extended several times, with the first appellant permitted to remain as a student until 14 June 1973. Applications for further extensions were refused in 1973 and 1974, though following the troubled situation in Cyprus, leave was granted until 3 July 1975 with permission to work. From 3 July 1975, neither appellant had any subsisting leave to remain in the UK.

On 7 August 1975, while no limited leave was in existence, the appellants applied for leave to remain for at least 12 months due to the situation in Cyprus. On 12 February 1976, the Secretary of State refused the application using form APP101, headed ‘Refusal to revoke or vary leave to enter’. The notice 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 appellants lodged an appeal to the adjudicator on 23 February 1976.

Issues

Principal Legal Question

Whether the adjudicator had jurisdiction to hear an appeal against the refusal when no valid limited leave existed at the time of the application.

Judgment

Lord Russell of Killowen delivered the leading judgment, with which all other Law Lords agreed. The House dismissed the appeal.

Lord Russell explained that following the House of Lords decision in Suthendran v Immigration Appeal Tribunal, the form APP101 was misconceived because there was no power conferred upon the Secretary of State to vary a limited stay permission after it had expired.

Lord Russell identified the appellants’ fundamental difficulty:

“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.”

Lord Russell concluded:

“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.”

Criticism of Leave to Appeal

Lord Russell criticised the Court of Appeal for granting leave to appeal, stating:

“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.”

Implications

This case reinforced the principle established in Suthendran that once limited leave to remain has expired, there is no power to vary it, and consequently no right of appeal under section 14(1) of the Immigration Act 1971. The decision clarified the procedural requirements for immigration appeals and the limitations on the adjudicator’s jurisdiction. It also demonstrated judicial concern about inappropriate grants of leave to appeal that extend unlawful residence and increase costs.

Verdict: Appeal dismissed. The adjudicator correctly held he had no jurisdiction to entertain the appeal as no valid limited leave existed at the time of the application.

Source: Halil & Anor v Davidson [1980] UKHL 13