Musico v Secretary of State for the Home Department

Exemption from immigration control under the Immigration Act 1971 depends on the statutory facts being present. An entry-clearance officer’s mistaken classification cannot itself create exemption where the required diplomatic employment does not exist. The statutory 90-day leave under section 8A applies only to a person who was actually exempt and later ceased to be so. The court left open whether common-law fairness may sometimes mitigate an official mistake where the individual was not at fault. Fairness does not require treatment more favourable than genuine exempt status. A refusal is not an appealable immigration decision under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 where the applicant had no subsisting leave.

The appellant entered the United Kingdom in 2009 after an entry-clearance officer classified her as exempt from immigration control. She worked at the Lebanese Ambassador’s residence, but was employed personally by the Ambassador rather than by the Embassy. She later made applications for leave to remain as a domestic worker. The respondent refused the application made on 12 March 2014.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal held that the appellant had never had subsisting leave when the application was made, so the refusal was not an appealable immigration decision. The central questions before the Court of Appeal were whether the original exemption classification was mistaken and what legal consequences, including any fairness-based protection, followed from that mistake.

The appeal was dismissed. Lord Justice Lewis gave the judgment, with Lord Justice Peter Jackson and Lord Justice Underhill agreeing. The Upper Tribunal had erred on the first issue but reached the correct result on jurisdiction.

1. Exemption under section 8(3) of the Immigration Act 1971 depended on the appellant being employed by the diplomatic mission or otherwise satisfying the statutory facts. The evidence showed that she had always been employed personally by the Ambassador. The entry-clearance officer had therefore wrongly characterised her as exempt.
2. Section 8A did not apply. It operates where a person who is actually exempt ceases to be exempt and then receives deemed 90-day leave. The appellant had never been exempt, so the provision did not deem her to have leave.
3. The court left open whether procedural fairness could, in an appropriate case, mitigate the consequences of an official mistake where the person was not responsible for it. That issue would require analysis of R (Pathan) v Secretary of State for the Department [2020] UKSC 41. It was unnecessary to decide it here.
4. Fairness could not require exemption to continue until the passport expired or until formal notification by the respondent. That would treat the appellant more favourably than a person genuinely exempt under section 8. She knew by June 2013, and certainly by August 2013, that she did not satisfy the exemption requirements. Even allowing an analogous 90-day period and the additional grace period, that period had expired by October or November 2013.
5. R v Secretary of State for the Home Department ex parte Ram [1979] 1 W.L.R. 148 was distinguished. In that case, an immigration officer had exercised a statutory power to grant leave. Here, exemption depended on facts which did not exist, and no leave or statutory status had been granted.

When the appellant applied on 12 March 2014 she had no leave to enter or remain. The refusal of 25 April 2014 was therefore not a refusal to vary leave within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, and there was no right of appeal. The appellant was ordered to pay the respondent’s costs.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the conclusion that there was no right of appeal against the refusal of leave.
• Upper Tribunal (Immigration and Asylum Chamber) held that the appellant had no subsisting leave when she applied and that the refusal was not an immigration decision.
• First-tier Tribunal treated the refusal as appealable but dismissed the appellant’s appeal on its merits.