R v. Secretary of State for the Home Department, Ex parte Mahalingam Sureshkumar

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte MAHALINGAM SURESHKUMAR

Queen's Bench Division

[1986] Imm AR 420

Hearing Date: 25 June 1986

25 June 1986

Index Terms:

Immigration Rules -- whether the Secretary of State was empowered to introduce a requirement that citizens of Sri Lanka held visas before seeking leave to enter the United Kingdom, by amending the immigration rules -- whether that requirement incorporated in the rules, over-rode other provisions of the rules which would have allowed admission without entry clearance if an applicant could satisfy the immigration officer of his bona-fides. Immigration Act 1971 ss 1(4), 1(5), 3(1), 3(2), HC 169 paras 10, 24.

Held:

The applicant for judicial review was a citizen of Sri Lanka. He travelled to the United Kingdom from Germany, arriving on 15 January 1986. He asserted he was unaware that by an amendment to the immigration rules on 30 May 1985, he required a visa for entry to the United Kingdom. He sought leave to enter as a student. Although it seems that it was not doubted that he was a geniune student, he was refused admission because he did not hold a visa. Before the Court it was submitted that the Secretary of State had no power, under the 1971 Act, to impose a visa requirement on Commonwealth citizens merely by amending the rules. It was further submitted that even after the imposition of that requirement, the applicant should have been granted admission in accordance with the provisions of paragraph 24 of HC 169, if he could satisfy the immigration officer that he was a genuine student. Held: 1. The powers vested in the Secretary of State by section 3(2) of the Immigration Act 1971 allowed him to make rules which distinguished between persons, including Commonwealth citizens, on the ground of their nationality or citizenship. The amendment of paragraph 10 of HC 169 so as to impose a visa requirement on citizens of Sri Lanka was intra vires. 2. The wording of paragraph 10 of HC 169 was clear, and its mandatory provisions over-rode the discretionary powers in paragraph 24 of HC 169.

Counsel:

KS Nathan for the applicant; N Pleming for the respondent. PANEL: Nolan J

Judgment One:

NOLAN J: The applicant in this case, Mahalingham Sureshkumar, is a young man of 19 who is a citizen of Sri Lanka. He wishes to remain in this country and to pursue a crouse of studies at the London School of Accountancy. He has been accepted for a course there and he has paid, or there has been paid on his behalf, the sun of @750 by way of fees. No aspersions of any sort are cast upon him in these proceedings. He is put forward as a man of good character and a conscientious student. He now applies with leave for an order of certiorari to quash the refusal of leave to enter which was issued on 19 January 1986. He had arrived in this country on 15 January and had been granted temporary admission so that further examinations could be carried out. It was at the conclusion of those further examinations upon 19 January that he was refused leave to enter. The reason given was simply this:

"You have asked for leave to enter the United Kingdom as a student, but you have no current United Kingdom visa."

The reference to a visa requirement is based upon an amendment to paragraph 10 of the immigration rules contained in HC 169. The amendment, which took effect on 30 May 1985, resulted in paragraph 10 reading as follows:

"The foreign nationals [and Commonwealth citizens] specified in the Appendix, . . . (who are collectively described in these rules as 'visa nationals') must produce to the immigration officer a passport or other identity document endorsed with a United Kingdom visa issued for the purpose for which they seek entry, and should be refused leave to enter if they have no such current visa . . ."

The Appendix was at the same time amended to include citizens of Sri Lanka. Mr Sureshkumar had wished to make out his case to the immigration officer for admission as a prospective student under paragraph 24 of the rules. That enables one coming here to study, even if he has not got a current entry clearance certificate before coming to this country, to satisfy the immigration officer if he can that he is a genuine student and does not intend in any way to infringe the immigration laws. The grounds set out in the notice of motion for challenging the decision to refuse the applicant leave are six in number. Mr Nathan, however, made it clear at the outset that while not conceding the weakness or invalidity of other grounds, and reserving the right to raise them if so advised, the particular ground which he urges before me is that he purported amendment to paragraph 10 of HC 169 was ineffective to justify the refusal of entry so far as the applicant is concerned. Secondly, Mr Nathan submits that that being so, the immigration officer failed to consider a matter which he should have considered, namely the applicant's claim for admission under paragraph 24. Mr Pleming, for the respondent, concended that if the applicant was right on his first point, it would then follow that his case under paragraph 24 should have been but had not been considered. Therefore, I am left with the first point. The arguments put before me by Mr Nathan concentrated upon the historic situation of citizens of Sri Lanka, and upon the fact that until 1962, when the first of the relevant immigration measures was passed, they were entirely free to come into this country. He asked me to note that earlier provisions such as the Alien's Order of 1953, imposing visa requirements had taken the form of a statutory instrument. He submitted that it was quite inappropriate and therefore ineffective for the Secretary of State to purport by a mere change in the rules to impose a visa requirement upon Sri Lankans who are citizens of the Commonwealth in the general terms asserted. He contrasts the position of Sri Lankans with that of Pakistans who are not subject to the same blanket requirement of a visa now contained in the Appendix to the amended HC 169 in relation to Sri Lankans. The attack therefore is an attack upon the right of the Secretary of State make, and for the immigration officer to apply, the amended rule 10 of HC 169. It appears from the Immigration Act itself, the governing statute, that the power to make rules is conferred upon the Secretary of State by section 3, subsection (2). Subsection (1) of section 3 provides:

"Except as otherwise provided by or under this Act, where a person is not a British citizen -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act."

The applicant, of course, is not a British citizen.. Subsection (2) provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality.)"

Thus, submits Mr Pleming for the respondent, it is clear that Parliament has given that power to make rules; rules which may be changed and which may distinguish between people of different nationality. The provisions of section 1(4) to which section 3(2) refers, in terms import references to persons coming from the purposes of study. I note also subsection (5) of section 1 which makes special and favourable provision for Commonwealth citizens, but only if they were settled in the United Kingdom at the comming into force of the Act. Section 4 of the same Act provides by subsection (3) for certain matters to be dealt with by way of statutory instrument. (See subsections (3) and (4) of section 4.) The power to make rules given by section 3(2), however, has never to my knowledge been held or suggested to fall short of enabling the Secretary of State to distinguish between persons on the ground of their citizenship or nationality, even though they be Commonwealth citizens. I am bound to say it seems to me that Mr Nathan's argument on behalf of the applicant falls at this hurdle. I can see nothing in the language of the amendment to rule 10, any more than in rule 10 itself which is ultra vires or open to challenge in a court of law. There remains the question whether paragraph 10 in its amended form should operate according to its terms in the present case. It may still be said, submits Mr Nathan, to be inconsistent with paragraph 24 and to leave open to the applicant the right of making his case under paragraph 24, visa or no visa. Comparing the terms of the two provisions, however, I am bound to rule against that submisson also. Paragraph 10 is clear and emphatic. If a person coming to this country falls within the Rule as amended but has no visa, he should be refused leave to enter. That seems to me to override the provisions of paragraph 24, under which a person may be admitted if he satisfies the immigration officer of his bona fides as a student. I cannot read paragraph 10 as allowing for any such exclusion from its scope. It is apparent from the arguments put to me that although Mr Nathan appreciates that he has to make out his case on the law and not on the general considerations, political or otherwise, which are bound to excite emotions in a case of this sort, the applicant feels aggrieved by a statement in the affidavit filed on behalf of the respondent to the effect that he knew of the visa requirement and that he had no good excuse for not having a visa. According to the applicant's evidence, he first heard of the visa requirement as he was catching a plane to come here from Germany. There is clearly here a conflict of evidence. I cannot resolve it. I can only say that whether or not he knew he had to have a visa is immaterial to the question whether paragraph 10 applies. The differential treatment of Sri Lankas as against citizens of Pakistan which left the Commonwealth, I understand, in 1970, again, though no doubt keenly felt by the applicant and other Sri Lankas, is not a matter into which I can enter. I must therefore refuse this motion.

DISPOSITION:

Application dismissed.

SOLICITORS:

Chatwani & Co, Middlesex, Treasury Solicitor