R v. Chief Immigration Officer, Gatwick Airport, Ex parte Kharrazi

R v Chief Immigration Officer, Gatwick Airport, ex parte Kharrazi

COURT OF APPEAL, CIVIL DIVISION

[1980] 3 All ER 373, [1980] 1 WLR 1396

Hearing Date: 30 JUNE, 1, 9 JULY 1980

9 JULY 1980

Index Terms:

Immigration - Leave of enter - Non-patrial - Student - Applicant required to produce to immigration officer proof of acceptance for course of study at school or university - Officer required to refuse entry if not satisfied that applicant would leave United Kingdom on completion of full-time course of study - Full-time course of study - Proof by schoolboy applicant that he was accepted by school for three-year 'O' level course of study - Officer not satisfied that applicant would leave on completion of three-year course because applicant stated that he expected to stay until completion of university study - Refusal by officer to grant applicant leave to enter as a student - Whether officer had interpreted rules correctly - Statement of Changes in Immigration Rules (H C Paper (1979-80) no 394), paras 21, 22.

Held:

In 1979 the applicant, a bright 12-year old Iranian boy, was sent by his parents in Iran to school in America, but in 1980, following a change in American policy towards Iranian nationals, he had to leave there. His parents wanted him to continue his education in England and he was accepted by an English public school to do a three-year 'O' level course. On his arrival in the United Kingdom he produced to the immigration officer documents showing that he had been accepted for the 'O' level course at the school and that he had sufficient funds to meet the cost of the course, those being the two requirements a passenger seeking entry had to meet in order to satisfy para 21 a of the immigration rules b made under the Immigration Act 1971. He was met at the airport by a brother who was studying in England and who planned to remain indefinitely. The immigration officer interviewed them both and asked them how long the applicant intended to remain in the United Kingdom. Both told him that the applicant expected to remain there for up to ten years or as long as it took to complete his secondary education and go on to university. After considering the applicant's reasons for leaving America and his family situation, the immigration officer, acting under para 22 c of the rules, refused the applicant leave to enter as a student, on the ground that he was not satisfied that the applicant intended to leave the country 'on completion' of 'a full-time course of study'. In so deciding the immigration officer interpreted 'a full-time course of study' as referring, in relation to the applicant, to the three year 'O' level course for which he had been accepted and concluded that his answers showed that he did not intend to leave when that was completed. The applicant applied under RSC Ord 53 for judicial review of the immigration officer's decision by way of an order of certiorari to quash it on the ground that the immigration officer's refusal was unreasonable and contrary to the immigration rules. a Paragraph 21 is set out at p 375 j to p 376 a, post b Statement of Changes in Immigration Rules (HC Paper (1979-80) no 394) c Paragraph 22 is set out at p 376 b c, post Held - (1) On the true construction of the immigration rules, the 'full-time course of study' referred to in para 22 was not confined to the 'course of study' mentioned in para 21 for which a prospective entrant had to produce evidence of acceptance, but could include (per Lord Denning MR) such full-time course of study as a boy of the applicant's age might reasonably expect to follow through to its conclusion (i e the attainment of a degree) even though he had not at that stage been guaranteed a place at a university, or (per Waller and Dunn LJJ) not only the course of study for which the prospective entrant had been accepted but a coherent and definite educational proposal of more than one course of study which was reasonably capable of being carried out by him (see p 378 g to j, p 382 a to c and p 383 g to j, post). (2) (Waller LJ dissenting) The immigration officer had misinterpreted para 22 by construing it too narrowly in asking himself whether the applicant intended to leave at the end of the three-year course rather than whether he intended to leave on the completion of his expected course of education. In the circumstances the court would quash the officer's decision and remit the case to him for reconsideration (see p 379 b, p 380 b to h and p 383 j to p 384 a and d to g, post).

Notes:

For the entry of non-patrial students, see 4 Halsbury's Laws (4th Edn) para 984. For the Immigration Act 1971, ss 1, 3, 4, see 41 Halsbury's Statutes (3rd Edn) 16, 20, 22.

Cases referred to in the Judgment:

Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147, [1969] 2 WLR 163, HL, Digest (Cont Vol C) 281, 2557b. Company, Re a [1980] 1 All ER 284, [1980] 2 WLR 241, CA; on appeal sub nom Re Racal Communications Ltd [1980] 2 All ER 634, [1980] 3 WLR 181, HL. Gilmore's Application, Re [1957] 1 All ER 796, sub nom R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574, [1957] 2 WLR 498, CA, 16 Digest (Repl) 482, 3016. Pearlman v Keepers and Governors of Harrow School [1979] 1 All ER 365, [1979] QB 56, [1978] 3 WLR 736, 38 P & CR 136, CA, Digest (Cont Vol E) 125, 4476a. R v Governor of Pentonville Prison, ex parte Azam [1973] 2 All ER 741, [1974] AC 18, [1973] 2 WLR 949, CA; affd [1973] 2 All ER 765, [1974] AC 18, [1973] 2 WLR 1058, 137 JP 626, HL, Digest (Cont Vol D) 24, 101g. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643, [1974] 1 QB 720, [1974] 2 WLR 805, 38 JP 505, 72 LGR 516, 28 P & CR 251, DC, Digest (Cont Vol D) 268, 2835d. R v Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All ER 452, [1977] 1 WLR 766, 141 JP 626, CA, 2 Digest (Reissue) 214, 1224.

Cases cited in the Judgment:

Attorney General (on the relation of McWhirter) v Independent Broadcasting Authority [1973] 1 All ER 689, [1973] QB 629, CA. Liversidge v Anderson [1941] 3 All ER 338, [1942] AC 206, HL. R v Immigration Appeals Adjudicator, ex parte Perween Khan [1972] 3 All ER 297, [1972] 1 WLR 1058, DC. R v Lympne Airport Chief Immigration Officer, ex parte Amrik Singh [1968] 3 All ER 163, [1969] 1 QB 333, DC. R v Secretary of State for the Home Department, ex parte Mughal [1973] 3 All ER 796, [1974] QB 313, CA.

Introduction:

Appeal. The applicant, Khashayar Kharrazi, by his brother and next friend Dariush Kharrazi, applied to the Divisional Court of the Queen's Bench Division for leave to apply for a judicial review by way of (i) an order of certiorari to remove into the court and to quash a decision dated 16th May 1980 by the respondent, the Chief Immigration Officer at Gatwick Airport, to refuse the applicant leave to enter the United Kingdom, and (ii) an order of mandamus directing the respondent to reconsider the case of the applicant in accordance with the law and rules applicable and to direct that the applicant be given leave to enter the United Kingdom. On 6th June 1980 the Divisional Court (Donaldson LJ and Woolf J) refused to give him leave to apply for a judicial review. The applicant applied to the Court of Appeal for leave. On 13th June 1980 the court (Lord Denning MR, Waller and Dunn LJJ) have him leave and ordered that the hearing be expedited and heard in the Court of Appeal. The facts are set out in the judgment of Lord Denning MR.

Counsel:

Charles Fletcher-Cooke QC and K S Nathan for the applicant. Simon Brown for the respondent.

Judgment-READ:

Cur adv vult. 9th July. The following judgments were read. PANEL: LORD DENNING MR, WALLER AND DUNN LJJ

Judgment One:

LORD DENNING MR.

1 Entry for education To be educated in England is an advantage. It is much sought after. For many years parents in countries overseas have sent their children here to be educated. If they can afford it. They have sent their sons and daughters to our public schools and on to our universities. On finishing here, they have returned to their own countries, often to exercise much influence there, for good. The most distinguished being Jawaharlal Nehru of Harrow and Trinity College, Cambridge. Many have been called to the English Bar and gone back to be prime ministers and judges. Even revolutionaries. Such as Mahatma Gandhi. Some to Sandhurst, and have gone back to become generals and heads of military governments. Like Ayub Khan. Successive Home Secretaries have recognised the value of this beneficent service to the world. Under the immigration rules, we freely admit boys, and girls, of school age whose parents wish them to be educated here and can afford the expense, on the understanding that, when their education is completed, they will return to their home countries. This freedom of education is ensured by the special provisions relating to the entry of students. They are contained in the Statement of Changes in Immigration Rules (HC Paper (1979-80) no 394). We have today to consider their interpretation. Rules 21 and 22 provide:

'21. A passenger seeking entry to study in the United Kingdom should be admitted (subject to paragraph 13) if he presents a current entry clearance granted for that purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the entry clearance officer that he has been accepted for a course of study at a university, a college of education or further education, an independent school or any bona fide private educational institution; that the course will occupy the whole or a substantial part of his time; and that he can, without working and without recourse to public funds, meet the cost of the course and of his own maintenance and accommodation and that of any dependents during the course.

'22. An applicant is to be refused an entry clearance as a student if the entry clearance officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it. In assessing the case the officer should consider such points as whether the applicant's qualifications are adequate for the course he proposes to follow, and whether there is any evidence of sponsorship by his home government or any other official body. As a general rule an entry clearance is not to be granted unless the applicant proposes to spend not less than 15 hours a week in organised daytime study of a single subject or of related subjects, and is not to be granted for the taking of a correspondence course.'

2 The young Iranian boy Iran is much in the news. So are Iranian nationals. Here is a young boy who seems to have been caught up in the interchanges of nations. He is Khashayar Kharrazi. He was born in Iran on 3rd April 1967. So he is just 13. His father and mother are in Iran where his father is the executive manager of a big agricultural concern. They are very well off. They have three other sons. They have sent all their sons to the United States or England for their education. One of them went to the United States and qualified in computer engineering. He has returned to Iran to work. Another is studying in the United States, doing a course in aerospace programming. Yet another is studying in England and is doing a course for the Higher National Diploma. The fourth and youngest is our present applicant, Khashayar. When Khashayar was just 12, in June 1979, his mother took him to the United States and enrolled him at a junior high school in Tucson, Arizona. His teacher there gives him a first-class report showing that he has done exceedingly well. His mother had originally entered him as a 'visitor' to the United States, but, after the overthrow of the Shah, the American authorities gave a general permission to Iranian nationals to stay. Later on, when the hostages were imprisoned in Tehran, the American policy changed towards Iranian nationals. Things were so uncomfortable there for this young boy that the family decided to bring him over to England for his education if suitable arrangements could be made. His mother and father had already gone back to Iran. So his brothers did everything. They made inquiries of the British Consul in Los Angeles and of the Home Office in London. They were told that, as long as he had a course and sufficient funds available for his maintenance, he would be granted leave to enter as a student. (That seems to be a convenient summary of paras 21 and 22.) The family arranged for him to be enrolled as a student at one of our smaller public schools, Pierrepont School, Frensham, Farnham, Surrey. The headmaster gave a certificate that --

'Khashayar Kharrazi has enrolled and has been accepted to start a three year "O" Level course at Pierrepont School as a boarding student with effect from 1st September 1980.'

Everything being then in order for England, the family arranged for him to be granted voluntary departure from the United States. It was done. His belongings were packed up. His flight booked. All papers got in order so as to show his good faith. His brother Dariush was to meet him at Gatwick, and get him settled in. 3 Gatwick, 16th May 1980 On 16th May 1980 the boy arrived at Gatwick airport. An immigration officer, Mr Ladd, interviewed him. The boy was only just 13 but he answered well and produced all his papers.They showed excellent credentials. This is the account given by the immigration officer of the interview:

'The Applicant was interviewed throughout in English which he spoke well and there were no language difficulties. I asked the Applicant how long he wished to stay in the United Kingdom. He replied that he wanted leave to enter for 1 year as a student and said that he expected to remain in the United Kingdom for up to 10 years so as to complete his education, taking "O" levels, "A" levels and going on to University.'

The immigration officer then examined his papers. They showed he had ample means of support. He had a banker's draft for @1,071.21. He had a letter from Williams & Glyn's Bank showing that his brother here had a credit of @12,000. He had the certificate of enrolment at Pierrepont School for three years. He had a warm letter of support from a well-placed English resident at Camberley saying: '... My wife and I will also be taking more than a passing interest in his well being, both socially and as regards education.'

After questioning the young boy, the immigration officer then saw his brother Dariush who had come to meet him. He was accompanied by his English young lady whom he expected to marry. The immigration officer asked the brother how long he expected the young boy to remain in England. The brother answered: 'Up to ten years or as long as it takes to complete his education.' The immigration officer consulted his senior. They then told him that the boy was refused entry. They served a notice on the boy on 16th May 1980 in these words:

'Mr Khashayar KHARRAZI You have asked for leave to enter the United Kingdom as a student but I am not satisfied that you intend to leave the United Kingdom when your studies are completed. I therefore refuse you leave to enter the United Kingdom. I have given directions for your removal to Tehran.' Note the word 'studies' in that letter. The brother took that as meaning the completion of his studies at school and university.The brother told the immigration officer that he was prepared to give a bond so as to guarantee that the boy would leave after completion of his studies. But the immigration officer told him that our law in the United Kingdom does not authorise him to accept such bonds.

Having thus refused the boy entry, the immigration officer went off to make arrangements for the boy to be sent on the first available flight to Tehran. And he would have gone, but for the intervention of the law. The brother at once went to solicitors. They telephoned to the immigration officer saying that they were applying to the court. On that intimation the immigration officer allowed the boy to be temporarily admitted without prejudice to the position (see the Immigration Act 1971, Sch 2, para 21). It so happened that three days later the authorities here put a brake on the entry of Iranian nationals into this country. They could not enter except with a visa. But that did not apply to this boy. Under the immigration rules, as I read them, he ought to have been admitted. 4 The application for judicial review According to the statute, the boy has a right of appeal to an adjudicator, but not 'so long as he is in the United Kingdom'. In order to appeal, the boy would have to go (as ordered) to Iran and to appeal from there (see s 13(1) and (3) of the Immigration Act 1971). This would have been disastrous for the boy's future for several reasons. One is that it would take a long time for the boy's appeal to be heard by an adjudicator. Another is that the appeal would have to be decided on paper. The boy would not be present to speak for himself. His appeal might not be heard for months. So that his schooling would be gravely interrupted. And on the latest information, the Iranian law now forbids a student to leave Iran under the age of 18 years. So once back in Iran any hope for his education in England was gone. In this parlous situation, on 20th May application was made to the Divisional Court for judicial review. The application was made by his brother as his next friend. It was made on the grounds that the refusal of the immigration officer was unreasonable and contrary to the immigration rules. The Divisional Court refused the application without giving any reasons. It was renewed before us. We asked for the attendance of the immigration authorities. Then for the first time the immigration officer made an affidavit. This disclosed a new state of affairs. You will remember that the notice refusing entry said: 'I am not satisfied that you intend to leave the United Kingdom when your studies are completed.' The boy, his brother and we ourselves had all assumed that this meant when he had finished his full-time education, at school and university. But the affidavit of the immigration officer shows that he interpreted the rule as meaning that he had to intend to leave for good as soon as the course at Pierrepont School was completed; and, that as he intended to go on from school to the university, if he could get in, he was to be refused entry. 5 The reasoning of the immigration officer The reasoning of the immigration officer is so important that I will set it out in full:

'I then considered the matter in the light of the Immigration rules then applicable, paragraphs 21-24 of the Statement of Changes in Immigration Rules, HC394. It appeared that the Applicant had been accepted for a course of study for "O" levels and had the financial means to follow the course. However both the Applicant and his brother had indicated that the Applicant's intentions were not limited to the three year course and it was evident that he expected to stay in the United Kingdom for up to 10 years or more. He had been required to leave the United States of America and had stated that this was because of failure to comply with United States immigration rules. He was not without family in the United Kingdom and this situation was likely to continue since it appeared that his brother would be seeking to remain indefinitely. Taking all these things together I could not be satisfied that the Applicant intended to leave the United Kingdom on completion of his course of study. I discussed this matter with Chief Immigration Officer S. Woods and with his authority I refused the Applicant leave to enter.' (Emphasis mine.

To my mind that reasoning is only capable of one interpretation: the immigration officer regards his course of study as being the three-year course. In order to gain entry, the boy must intend to leave this country for good at the end of his three-year course at Pierrepont School; and that, as he did not intend to do so, but to go on to the university if he could, he had to be refused entry. If this interpretation of the rules be correct, it means that every boy or girl coming to England, to go to a public school, hoping to go on to a university, will have to be refused entry. He can only be admitted if he intends to leave this country for good, not for a holiday, at the end of his public school course, without going to a university. Such a rule would exclude all the most promising students who seek to come to England. All of them what to go to the university if they can. 6 The interpretation of the rules I can understand the way the immigration officer looked at the rules. He thought that the words 'a full-time course of study' in para 22 referred back to 'a course of study' in para 21. That is a possible interpretation but it is a narrow interpretation. So narrow indeed, and so unjust and unfair that I think it should be rejected. The words 'a full-time course of study' in para 22 should be interpreted as meaning 'a full-time course of study' such as a boy of his age can reasonably expect to follow through to its completion, that is, to the attainment of a degree, even though he has not yet been guaranteed or accepted for a place at a university. If he is able and intends to follow such a course, and to leave for good at the end of it, he comes within para 24. He may be admitted for an appropriate period depending on the length of the course of study and on his means. That fits in well with para 97. The appropriate period might only be for one year. He should then apply for extensions from time to time under para 98 and they will be granted to him so long as he is going on with his studies and intends to leave at the end of them. There is a sentence in para 24 which enables an immigration officer to admit 'for a short period' but that is directed to cases where a student comes without sufficient means to carry him through, or without having been actually enrolled for a course of study at a college or school. He can be admitted for a short period so as to enable him to overcome those difficulties. But that does not apply to this case. 7 The misdirection by the immigration officer In my opinion, therefore, the immigration officer misdirected himself in point of law. He did not interpret para 22 correctly. He gave it too narrow an interpretation and for that reason refused this boy entry. What then is to be done? Can the immigration officer's refusal be quashed by the court? Or is the court powerless? Must the boy be sent to Iran and appeal from there to an adjudicator? The procedure for judicial review is now governed by RSC Ord 53. The first question is this: is an immigration officer 'a person or body against whom relief may be granted by way of an order of mandamus or certiorari?' To my mind he is. He acts under a power conferred on him by Parliament to give or refuse leave to enter (see s 4(1) of the 1971 Act). He is bound to apply the rules made by the Secretary of State under the authority of the statute (see ss 1(4) and 3(2) of the Act). Being a public officer bound to apply statutory rules, he is amenable to the prerogative writs or, in modern terms, amenable to judicial review. The next question is whether this is a case where mandamus or certiorari will lie. If the immigration officer had been entrusted with a discretion, and the complaint was only of the manner of its exercise, then it would not lie: see R v Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All ER 452, [1977] 1 WLR 766. But, if the immigration officer interprets the rules wrongly, and on that account asks himself the wrong question, and thus gives the wrong answer to those dependent on it, he does something which he is not empowered to do. He acts ultra vires. That is made clear by the important observations of Lord Diplock in Re Racal Communications Ltd [1980] 2 All ER 634 at 638-639, [1980] 3 WLR 181 at 186-187. These do away with long-standing distinctions between errors within the jurisdiction and errors without it, by the simple device which was adumbrated in Pearlman v Keepers and Governors of Harrow School [1979] 1 All ER 365, [1979] QB 56. No administrative tribunal or administrative authority has jurisdiction to make an error of law on which the decision of the case depends. The House said in Re Racal Communications Ltd that we were wrong to apply that concept to the High Court; but left it intact with regard to administrative tribunals and other administrative authorities. Meaning thereby, as I understand it, all statutory tribunals and authorities other than the regular courts of law. Even if the statute makes the decision 'final and conclusive' (Re Gilmore's Application [1957] 1 All ER 796, [1957] 1 QB 574) or 'not [to] be called in question in any court' (Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147) or, what is the same thing, 'not appealable', nevertheless, so far as administrative tribunals and authorities are concerned, that exemption is only given on condition that they interpret their rules, and thus their power, rightly. If it should appear that they make an error of law on which their decision depends, they do that which they have no jurisdiction to do. 'No jurisdiction' means 'no power'. They act ultra vires. This approach renders it unnecessary to inquire whether there is, or is not, error on the face of the record; nor to inquire what is the record and what is not. Such bodies have no record as the courts of law have. Suffice it that it is shown, to the satisfaction of the court, that they have misinterpreted the statute or the rules under which they are empowered to act. By that very misinterpretation they go outside their power. Their decision must be quashed. Incidentally I would make this comment: although we were wrong, according to the House of Lords, in pearlman v Keepers and Governors of Harrow School [1979] 1 All ER 365, [1979] QB 56, and in Re a Company [1980] 2 All ER 284, [1980] 2 WLR 241, nevertheless we did clear up the legal position. We did give guidance to the judges below as to the way in which the statute in question should be interpreted. Whereas the House of Lords gave no guidance. They left every judge to do as he liked. Each one could interpret the statute as he wished, according to the length of his foot, and no one could correct him. So no one in the profession could advise his client how to act. What a state of affairs! All that I have just said is, however, subject to this qualification. If there is a convenient remedy by way of appeal to an adjudicator, then certiorari may be refused; and the applicant left to his remedy by way of appeal. But it has been held on countless occasions that the availability of appeal does not debar the court from quashing an order by prerogative writs, either of habeas corpus (see R v Governor of Pentonville Prison, ex parte Azam [1973] 2 All ER 741 at 750, [1974] AC 18 at 31) or certiorari (see R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643, [1974] 1 QB 720). It depends on the circumstances of each case. In this present case the remedy by way of appeal is useless. This boy's education, indeed, his whole future, will be ruined if he is sent off by aeroplane to Tehran. Rather than his future be ruined, it is better to quash the refusal; and let the Home Secretary reconsider the case. 8 Applied to this case The immigration officer misdirected himself on the interpretation of the rule. He asked himself the wrong question. As he interpreted the rule, he asked himself: 'Does this boy intend to leave the country for good at the end of his three-year course at Pierrepont School?' The answer was plainly: 'No. He intends to stay on in this country, and go on to the university if he can.' Owing to asking himself that wrong question, the immigration officer refused him leave to enter. But, if the immigration officer had asked himself the right question, he would have asked himself: 'Does this boy intend to leave this country for good as soon as he has completed his expected course of study, at school and university?' If the immigration officer had asked himself that question, he would, I should have thought, on the evidence before him, have answered it in this way: 'The boy says himself that, after he gets his degree, he intends to go back to Iran. His brother (who is here) confirmed it. The brother offers a bond to show their good faith. One of his brothers has gone back there already. We should give them credit for good intentions.' On that evidence, the immigration officer should have been satisfied of the present intention of the boy and should allow him to come in. There is, moreover, another way in which the immigration officer went wrong. As counsel for the applicant submitted to us, the rules require the immigration officer to look at the present intention of the applicant, subjectively, not to his future intention, objectively. Here the immigration officer seems to have asked himself: 'Am I satisfied that this boy will leave, or is likely to leave, at the end of his course of study?' That is shown by the phrase he used, 'this situation was likely to continue'. That, too, was the wrong question, and resulted in the wrong answer. If he had asked himself the right question: 'What is the boy's present intention?', he might well have been satisfied and allowed him to enter. Seeing that the immigration officer has asked himself the wrong question, I think his refusal should be quashed. The Home Secretary should consider the case afresh and decide whether he should be given leave to enter or not. I hope he will give him leave for one year anyway; and then extend it if proper. Who know?If this young boy is admitted here, he may do brilliantly; he may go back to Iran and become a leader in that troubled country. I would give him that chance. I would allow this appeal.

Judgment Two:

WALLER LJ. Khashayar Kharrazi, whom I will call 'the applicant', is an Iranian citizen and he is aged 13. He went to the United States with his parents in June 1979, and went to school there in Arizona. As a result first of the fall of the Shah and secondly of the taking of the American hostages, the policy of the United States towards Iranians in the United States changed. I do not at this stage go into the details of that save to say that the applicant agreed voluntarily to leave the country before 28th June. His brother who was in the United Kingdom made arrangements for him to go to his school at Farnham to do an 'O' level course of three years commencing in September 1980. Inquiries had been made from the Home Office and his brother understood that provided sufficient funds were available the applicant would be granted leave to enter as a student. On 16th May 1980 the applicant arrived at Gatwick airport, applied for leave to enter as a student and after being interviewed by an immigration officer was refused leave. The refusal stated: 'You have asked for leave to enter the United Kingdom as a student but I am not satisfied that you intend to leave the United Kingdom when your studies are completed.' The applicant now applies for judicial review of that decision with the leave of this court. The applicant had a letter showing that his brother had considerable funds in this country and the immigration officer then saw his brother. The brother was a final year student doing a National Diploma course at Farnborough Technical College and who had been in the country six years and was accompanied by a United Kingdom citizen, Miss Price, his fiancée. The brother was intending to reside in the United Kingdom after marriage. The brother told the immigration officer that the applicant would be likely to remain in the United Kingdom for ten years or as long as it took to complete his education. The immigration officer in his affidavit sets out fully an account of his interview with the applicant and in particular dealing with the applicant's explanation of the reasons for leaving the United States. The applicant asserted that the only reason was to continue his education in the United Kingdom, but when asked why he had been ordered to leave the United States he said it was because of immigration regulations. The immigration officer, after considering the matter in the light of the immigration rules, refused the applicant leave to enter in the terms which I have already set out. I will come to the details of his reasoning hereafter. The paragraphs of the statement of immigration rules which apply to this case are paras 21 to 24 of HC Paper (1979-80) no 394. Paragraph 21 sets out the conditions under which an entry clearance should be granted. They are: (1) evidence of acceptance for a course of study; (2) that it is whole time; (3) that he has funds for his maintenance and accommodation. Paragraph 22 requires the immigration officer to refuse an entry clearance as a student if he is not satisfied of either of two things, namely: (1) that the applicant is able and intends to follow a full-time course of study; and (2) that the applicant intends to leave the country on completion of it. Paragraph 23 has no application to this case. Paragraph 24, in the first part, states that a passenger may be admitted who satisfies the requirements I have already set out, and, in the second part, gives a discretion to the immigration officer to admit somebody who he is satisfied has genuine and realistic intentions of studying for a short period to enable further consideration of the case. In my opinion para 24 does not arise if the applicant has been refused an entry clearance because of either of the bars set out in para 22. In other words, if the immigration officer is not satisfied that the applicant intends to follow a full-time course and is able to do so, or is not satisfied that the applicant is able and intends to leave the country on completion of the course, he must refuse an entry clearance. In order to succeed in this case the applicant must show that the immigration officer's conclusion was one to which no reasonable immigration officer could come on the evidence, or that in some other respect the decision was wrong in point of law. It has not been argued that no reasonable officer could come to this conclusion. The point of law depends in part on the construction of paras 21 and 22. In para 21 an entry clearance has to be granted if the applicant produces evidence 'that he has been accepted for a course of study at a university, a college of education etc'. And in para 22 an applicant is to be refused if the officer is not satisfied that the applicant 'is able and intends to follow a full-time course of study and to leave the country on completion of it'. Do the words 'a full-time course of study' refer to the course of study at a university etc, mentioned in para 21, or do they have a wider, and if so what, other meaning? Were it not for the consequences of the strict interpretation, I would have come to the conclusion that the words 'course of study' in para 22 mean the same as 'course of study' in para 21. However, such a construction would lead to rather surprising results. A boy coming to the United Kingdom planning to go to school and then to university here, even if those plans were fairly clearly fixed, would not be allowed entry because his course at school would terminate and he would have to have an intention to return to his native country. If he intended to go on to university, that would be contrary to the intention and therefore he would have to be refused admission. On the other hand a more liberal construction might involve the admission of applicants as students who had rather vague plans for courses, one following another, and the intention of the rules would be frustrated. Is the true construction somewhere between these two extremes? Rule 98, which deals with variation of leave to enter or remain, states that 'an extension should be refused if there is reason to believe that the student does not intend to leave at the end of his studies'. That is wider phrase than is used in para 21 or para 22. In my judgment, the phrase 'full-time course of study' in para 22 is not restricted to precisely the course of study in para 21. On the other hand it does not mean that an intention to do more than one course is necessarily covered by the phrase 'full-time course of study'. A full-time course of study, in my opinion, could include more than one course, provided that they were specific parts of a coherent whole. In other words, arrangements to go to a preparatory school followed by a public school might well be a full-time course of study. They would require separate arrangements but they would be part of a coherent whole. Ffurthermore, perhaps school followed by university might be a coherent course, but that would depend on the facts, on the ability of the individual and so on. I have come to this conclusion with some hesitation but, on the facts as I now consider them, whether that view is right or whether a restrictive interpretation should be given does not matter in this case. The immigration officer in his affidavit said this:

'It appeared that the Applicant had been accepted for a course of study for "O" levels and had the financial means to follow the course. However, both the Applicant and his brother had indicated that the Applicant's intentions were not limited to the three-year course and it was evident that he expected to stay in the United Kingdom for up to 10 years or more.'

The immigration officer clearly, if it were the strict construction that had to be adopted, was coming to the conclusion that the requirements were not met. But he did not stop there; he went on to consider the reasons for leaving the United States; he went on to consider the fact that there was family in the United Kingdom; he had already set out in detail the circumstances of his brother in the United Kingdom and then he said, at the end of the paragraph: 'Taking all these things together I could not be satisfied that the Applicant intended to leave the United Kingdom on completion of his course of study.' There the immigration officer is following the precise words of para 22. If the immigration officer had been confining himself to the strict construction, he would have not gone further than his furst statement, but the fact that he went on and took these other matters into consideration shows, in my view, that he was giving a more liberal construction to the words. Accordingly, in my judgment, the applicant fails to show that there was any error of law in the decision of the immigration officer. If I had come to the conclusion that the immigration officer had wrongly construed the immigration rules, I would have been in favour of granting the application and of setting the immigration officer's decision aside. Since I am dissenting from Lord Denning MR and Dunn LJ (whose judgment I have seen in advance), I ought to state my view of the effect of granting the application for judicial review. This is not a case of a patrial or of some other person with a qualified right to enter. The applicant is an Iranian citizen and by s 3(1)(a) of the Immigration Act 1971, 'he shall not enter the United Kingdom unless given leave to do so in accordance with this Act'. To say that the refusal was made because of an error of law does not give the applicant a right to enter and this court has no power to grant leave to enter. In my opinion the applicant would be in the situation of an alien asking for leave to enter as a student. He has not been granted leave to enter and he would not have been refused if the refusal was wrong in law. It would be for the Secretary of State to ensure that the applicant's case is reconsidered, applying the right principles. On the view I take these questions do not arise. I have come to the conclusion that this application fails and should be refused. I should add, however, that on this view there are, I think, certain matters which would merit the consideration of the Secretary of State in this particular case. They are these: (1) The applicant came here as a result of information given to his brother by the Home Office on the one hand and as a result of information given by the British Consul in Los Angeles on the other. That information was that he would be admitted as a student to do the studies which had been arranged. (2) Because of that information the applicant arrived here although he had not then obtained entry clearance. (3) In the ordinary way a refusal would mean that an applicant would have to return to his native country and appeal to an adjudicator. In this case however there is information before this court that if the applicant returns to Iran he will not be allowed to leave until he is aged 18. In effect, therefore, the applicant is deprived of a right of appeal. This was something which the immigration officer perhaps did not know. (4) It is also possible that there was some misunderstanding in the mind of the immigration officer about the position of the applicant vis-a-vis the American immigration authorities. It may have appeared to the immigration officer that the applicant was not being entirely frank with the American authorities, whereas there is before this court an affidavit setting out more fully the situation under American law which could possibly lead to a different conclusion. I emphasise that it is possible; I do not suggest that it necessarily was an important part. These matters are only matters which might be considered by the Secretary of State and do not affect my view that there was no error in law in the immigration officer's decision.

Judgment Three:

DUNN LJ. If paras 21 and 22 of the immigration rules contained in HC Paper (1979-80) no 394 stood alone in a statute I would feel bound to hold that the words 'full-time course of study' in the first sentence of para 22 referred to the course of study for which the applicant had produced evidence that he had been accepted under para 21, whatever the consequences of that might be. But these rules do not fall to be construed as a statute. They have to be construed by busy immigration officers at all the ports of entry. They have to be construed in the light of their intention which clearly is to afford entry to bona fide students who come here for the purpose of their education and studies, and who can support themselves so long as they are here. They also have to be read as a whole. Paragraphs 97 to 99 relate to applications by students to extend their leave for the purpose of continuing their studies, and show that when considering such applications the immigration officer may look beyond the particular course of studies for which the applicant was granted leave to stay, and only refuse leave if he has reason to believe that the student does not intend to leave at the end of his extended course of studies. If a narrow construction is put on the words 'full-time course of study' in the first sentence of para 22, it would mean that a student who came here having been accepted for an initial course of study, but who honestly told the immigration officer that it was his intention to remain if possible for a further course of study, could never obtain entry. Whereas if he falsely told the immigration officer he intended to leave on completion of his first course of study, or if he changed his mind, he could be granted leave and then apply for an extension. This seems to me to put a premium on dishonesty and I cannot believe that it was the intention of the rules. Indeed counsel for the immigration authorities does not seriously suggest that it was. He suggests that the words 'full-time course of study' in the first sentence of para 22 should not be confined to the course of study for which the applicant has been accepted, but should be given a somewhat wider meaning, so as to include not only that course but also a coherent definite educational proposal reasonably capable in the view of the immigration officer of being carried out by the applicant. The longer the initial course the more difficult it would be for the applicant to satisfy the immigration officer that he has a sufficiently definite educational proposal extending beyond it, so that the immigration officer can be satisfied that the applicant intends to leave the country on completion of his total course of studies. I accept the submission of counsel for the immigration authorities as to the meaning of the words 'full-time course of study' in para 22. The question remains whether in refusing entry the immigration officer in this case adopted that meaning or the narrower meaning to which I have referred above. If he adopted the latter, then he erred in law and his decision cannot stand. His reasoning is set out in his affidavit of 27th June 1980. It is true that he refers to the fact the applicant failed to comply with the immigration rules of the United States of America, and to his family circumstances in this country, as indications that he did not intend to leave the country on completion of his course of studies. But in his affidavit he says:

'However both the applicant and his brother had indicated that the Applicant's intentions were not limited to the three year course and it was evident that he expected to stay in the United Kingdom for up to 10 years or more.'

The reference to staying in the United Kingdom for up to ten years or more is referable to an earlier passage in the affidavit when Mr Ladd said:

'I asked the Applicant how long he wished to stay in the United Kingdom. He replied he wanted leave to enter for 1 year as a student and said that he expected to remain in the United Kingdom for up to 10 years so as to complete his education, taking "O" levels, "A" levels, and going on the University.' And in a passage of the affidavit further on the immigration officer said:

'When I asked [the applicant's brother] how long he expected the Applicant to remain in the United Kingdom, he said that the period would be up to 10 years or as long as it took to complete his education.'

Although an affidavit of this kind is not to be construed too strictly, those passages indicate to me that the question to which the immigration officer was applying his mind was whether the applicant intended to leave this country on completion of the three-year course of study for which he had been accepted, and as the applicant frankly said he expected to remain here for up to ten years to complete his education the immigration officer refused him entry. He did not apply his mind to the question whether the applicant intended to remain after completion of his full course of ducation. In that approach I think the immigration officer erred in law. In reaching that conclusion I attach no blame whatever to the immigration officer. Counsel for the respondent told us that he was instructed to put forward the strict or narror construction of para 22 as being the correct construction, and it is not unreasonable to assume that it is that narrow construction that has hitherto been generally accepted by the Home Office and immigration officers as being correct. Indeed, as I have already said, it was at first my own reaction, until I realised the full implications of such construction and saw paras 97 to 99. And I can well understand why the immigration oficer approached the matter in the way in which he did. However, for the reasons I have given, his decision cannot stand. I too would allow the appeal, but I agree with Waller LJ that this does not mean that the applicant is now entitled as of right to enter as a student, and I would welcome the submissions of counsel as to the appropriate form of order so that his application can be reconsidered in the light of the principles enunciated by this court.

DISPOSITION:

Appeal allowed. Decision of immigration officer quashed. Case remitted to Chief Immigration Officer at Gatwick.

SOLICITORS:

Donald Nelson & Co (for the applicant); Treasury Solicitor.