Hermie Marquez v. Immigration Officer, Gatwick North
Hermie Marquez v Immigration Officer, Gatwick North
Immigration Appeal Tribunal
 Imm AR 354
Hearing Date: 25 March 1992
25 March 1992
Refusal of leave to enter -- student -- in possession of re-entry visa -- on application form he had indicated he would resume his studies -- immigration officer discovered applicant had worked as well as studied during earlier leave -- not revealed in application for re-entry visa -- whether a material fact -- whether refusal of leave to enter justified. HC 251 paras 16, 17, 26, 27, 78, 108.
Held: The appellant was a citizen of the Philippines who had been studying in the United Kingdom. He returned home for a holiday: before he left the United Kingdom he applied for and was granted a re-entry visa. That was issued on the basis of his seeking re-entry to resume his studies. As well as studying, the appellant, during his earlier student leave, had worked part-time. He did not declare that on his application form for the re-entry visa. When the immigration officer discovered that the appellant had earlier worked in breach of condition, he refused the appellant leave to re-enter the United Kingdom. An appeal was dismissed by an adjudicator. On appeal to the Tribunal it was argued that the fact that the appellant had worked was not a "material fact" within the meaning of the phrase in paragraph 17 of HC 251. Held 1. To be an undisclosed "material fact" within the meaning of the phrase in paragraph 17 of HC 251 it had to be shown that "the omission was objectively material and that the appellant knew or should have known of that materiality". 2. An intention to take employment was a fact material to the granting of a student entry clearance. 3. The appellant knew that his earlier leave had been subject to a condition restricting employment. 4. It followed that he knew or should have known that his intention to resume working as well as studying was a "material fact".
Cases referred to in the Judgment: Tahzeem Akhtar v Immigration Appeal Tribunal  Imm AR 326. Iracki (unreported) (5492).
Counsel: SA Pedro for the appellant; AD Clayton for the respondent PANEL: Professor DC Jackson (Vice-President), The Rt Hon the Countess of Mar, ML James Esq
Judgment One: THE TRIBUNAL: The appellant, a citizen of the Philippines, appeals against a decision of an adjudicator (Mr JM Timmons) dismissing his appeal against the refusal of leave to enter the United Kingdom as a student following a decision that his current re-entry visa was ineffective. The background facts The appellant has been in this country since 1987, first studying English and then, from September 1990, computers. In December 1990 he wished to visit the Philippines and, on 3 December 1990, applied for a re-entry visa. On the application form, a copy of which is before us, he stated that his intention on his return to the United Kingdom was to continue his studies. The appellant duly left on his trip and returned to this country on 19 January 1991. On entry the appellant told the immigration officer that he was intending to resume computer studies at Unity College, Kentish Town, producing a letter from the college in support. Because of various uncertainties, as the immigration officer saw it, in the appellant's responses, a search of his baggage was carried out, and among the documents found were a national insurance card and a Beefeater Restaurant payslip in the appellant's name for the week ending 7 December 1990. When the appellant was initially asked if he had ever worked in the United Kingdom, he said he had not, but upon a discovery of the payslip he said that he had worked at the restaurant part-time. At a further interview with a second immigration officer the appellant reiterated that he had worked part-time, and said that he worked at the Beefeater Restaurant in September 1989, arranging his working hours around his studies. Previous to that he had worked in the Big 'Uns Ribs Restaurant for a year. He said he worked an average of 27 hours per week and earned approximately @70 per week. On enquiry by the immigration officer the Beefeater wages head office stated that as bar staff the appellant was employed full-time. He had worked with them since September 1989 on this basis and "was still 'live' on their payroll as such". The appellant told the first immigration officer that his studies were funded fully by his mother. However on re-interview, he said that he worked in order to subsidise them. Copies of the appellant's passport are before us and they show leave to remain stamps dated 11 July 1988 and 15 November 1989 granting leave subject to the condition that the holder did not engage or change employment paid or unpaid without the consent of the Secretary of State for Employment. The notice of refusal reads: "You hold a current entry clearance but I am satisfied that material facts were not disclosed for the purpose of obtaining the clearance. Furthermore, when previously in 1990 you did not observe the conditions imposed on your previous grant of leave to remain in that you took employment from Sept '89 to December 1990 with the Beefeater Restaurant and in the light of this I am satisfied that refusal is justified on the grounds that your exclusion would be conducive to the public good". The appellant and his mother gave evidence before the adjudicator. The adjudicator thought the appellant was not being honest in his evidence, but he accepted the evidence of his mother. In his evidence the appellant said that he did not know that he was not allowed to work, and that he had to work to help his mother. He said that he had not worked since his arrival on 19 January 1991. His mother did not ask him to work as she was paying for his tuition fees and fares, and he lived with her. When it was put to him that the Beefeater had said that he was a full-time worker, he replied that he did not know that he was doing wrong and that when he came back he was intending to continue working. He was asked why he did not say on his application form for his visa that he intended to continue his studies and continue to work. He first made no reply and then said that it was because his studies were his main concern. He said that he used to work in the evenings while he was at college, and during vacations he worked longer hours. The appellant's mother said that the reason her son came here was to study, that she was not aware that he was working but that she knew he was when he got his national insurance and poll tax. She had always paid all his expenses. The adjudicator's determination concludes: "When the appellant gave evidence to me he tried to persuade me that he did not know that he was not allowed to work. I do not believe him. He also tried to persuade me that he worked part-time. I do not believe him. I consider that he was working full-time. He said he had to work to help his mother, but this is quite untrue, because his mother was paying for all his expenses. She herself had a good job. The appellant told Miss Gilbert, when questioned, that he had never worked in the United Kingdom because he knew that he should not have worked. He told me that when he came back to this country in January 1991 he was intending to continue working. In my judgment, when the appellant was asked the question "What do you intend to do on your return to the UK", and he declared on 3 December 1990, "continue my studies", without saying that he intended to resume his work, he was, for the purpose of obtaining entry clearance, failing to disclose a material fact. His failure to disclose that material fact is consistent with his denial to Miss Gilbert that he had ever worked in this country. In cross-examination, he was asked why he had not said, on Annex 5, that it was his intention to continue working when he came back to this country; he made no reply. With respect to the immigration officer, I do not agree that the mere fact that the appellant had taken employment, without permission, during his previous stay in this country justifies the conclusion that the appellant's exclusion is conducive to the public good. I say that, having regard to the words "from information available to the immigration officer it seems right to refuse leave to enter on that ground, if, for example, in the light of the passenger's character, conduct or association, it is undesirable to give him leave to enter." However, I consider that the appellant's visa was rendered ineffective because, for the purpose of obtaining clearance, material facts were not disclosed, namely the fact that his intention on returning to his country was to resume his employment. For that reason therefore I dismiss this appeal". The applicable immigration rule The applicable immigration rule is that set out in HC 251 paragraph 17. This, so far as relevant, reads: "17. A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the immigration officer is satisfied that: (a) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the clearance; or (b) . . . (c) refusal is justified on grounds of restricted returnability, on medical grounds, on grounds of criminal record, because the passenger is the subject of a deportation order or because exclusion would be conducive to the public good. The scope of the power to refuse leave to enter on these grounds is set out in paragraphs 19 and 81 to 86." At the start of the hearing there was discussion as to whether, there being no appeal by the immigration officer from the adjudicator, it was now open to Mr Clayton to argue that the ground of refusal based on public good was justified. After discussion Mr Clayton said that he would not in this case seek to rely on that, and it was agreed therefore that the sole issue for the Tribunal was whether the appellant had failed to disclose a material fact, thereby justifying the declaration that the visa was ineffective and in turn justifying the refusal of leave to enter. In that context it was further agreed that the precise issue was whether the appellant had not disclosed a material fact by not disclosing on his application for a re-entry visa that he intended to continue working as well as to continue his studies. The issue is therefore legally and factually narrow. Mr Pedro argued that the only purpose for the appellant being in this country was to study, and that was the only reason behind his intention to return in January 1991. The resumption of work was immaterial to that reason and, if he was not studying, he would not be working. The application form for the re-entry visa was nowhere near as detailed as that for an entry visa, and the responses on it should not be seen as requiring the same precision. Mr Pedro argued further that any non-disclosure that had occurred was not a material non-disclosure. The fact that he was working outside student hours was not material to the grant of a student entry clearance, and it was this factor which distinguished this type of case from those concerning visitors who worked. Mr Pedro referred us to HC 251 paragraph 26 which sets out the requirements for a student entry clearance. Once it was accepted, said Mr Pedro, that the appellant's mother would pay the college fees, then the requirements of that provision were fulfilled and the appellant would have been entitled to an entry clearance. The intention to work was not material as this was not a factor listed in paragraph 26. This was to be contrasted with the rule applicable to visitors (paragraph 22) where any intention to undertake employment was specified as a reason for refusal. Mr Pedro contended that a fact can only be material if it related to a requirement of the rule applicable to the substantive application -- "materiality" could not relate only to paragraph 17. Mr Clayton argued that on the facts the employment was not subsidiary to the studies, but the reverse. He asked us to bear that in mind when considering the effect of the failure to record on the application form that there was an intention to continue working. Mr Clayton argued that the test of whether non-disclosure was material was not whether an entry clearance would have been granted had it been disclosed, but whether in the Tribunal's view it would have played a part in the granting of it. In this case, argued Mr Clayton, the fact that the appellant had worked, as the adjudicator found, knowing that he should not have worked would clearly be a factor to the granting of a visa. Materiality (i) Knowledge of the applicant By the express terms of paragraph 17, materiality is a necessary element in justifying refusal on the ground of non-disclosure of facts. Further, in contrast to a false representation, it would be difficult to argue that the omission was for the purpose of obtaining the entry clearance unless there was some consciousness of materiality by the person failing to make the disclosure (see Iracki (5492)). It must therefore be shown, first, that the omission was objectively material and, secondly, that the appellant knew or should have known of that materiality. (ii) Relevance to consideration of granting the visa However, as Mr Clayton contended, the materiality goes to the application for the visa and not to the question of whether, had the fact been disclosed, entry clearance would have been granted. It must be shown by the immigration officer therefore, that the applicant failed to disclose a fact which he knew or ought to have known would be a relevant factor in considering whether to grant the visa (see Akhtar v Immigration Appeal Tribunal  Imm AR 326 -- a case concerned with false representation). (iii) "Material" to the visa applied for We agree with Mr Pedro that the materiality must relate to the entry clearance or visa which was granted -- in this case a student entry clearance. However, matters material to a student entry clearance are not solely those specified in paragraphs 26 and 27. They include other matters on which leave to enter might be refused (see HC 251 paragraph 16). Leave to enter may be refused not only for lack of failure to comply with the substantive requirements attached to the category of entrant for which application is made, but also on the ground of such matters as are set out in paragraph 78. These matters include a failure to observe conditions of previous leave, and failure to disclose that fact would, in our view, be failure to disclose a material fact. It is arguable therefore that, if the appellant knew that he should not have worked, and having worked, his failure to state this when applying for an entry clearance was a failure to disclose a material fact. However, as Mr Pedro said, the application form which the appellant completed was not of great detail, and there is no question about activity during previous leave included in it. It is therefore also arguable that it could not be shown that the objective materiality of previous working to a present application would be apparent to an applicant. We do not take this point further, for it was agreed that the case turned on whether the appellant's failure to state that he intended to resume work as well as to study was a material non-disclosure. We should approach this question considering the rules as a whole, particularly as the issue concerns an application to return to this country to resume activities already undertaken during a previous leave. It is clear from the after entry rules (paragraph 108) that a person obtaining admission as a student will do so subject either to a prohibition on, or a restriction on freedom to take, employment. That being so, it seems to us that if on application for a student entry clearance the applicant makes it clear that he intends to take employment, this would be a fact material to the granting of the entry clearance. The entry clearance officer would have to investigate that fact to ensure that the applicant intended and was likely to comply with the condition which would be imposed on entry. We conclude, therefore, that an intention to take employment is a fact material to the granting of a student entry clearance because of its relevance to the granting of leave to enter. On the adjudicator's findings in this case, the appellant knew of the restriction on employment imposed on his previous leave and he knew that working was contrary to it. On his own evidence he was applying for leave primarily for the purpose of studying, and from his previous leave he must have known that employment would be a relevant factor to that application. Failure to disclose his intention to work was therefore not only failure to disclose a fact objectively material to the application, but a fact which the appellant either realised or should have realised was material. The appeal is dismissed.
DISPOSITION: Appeal dismissed
SOLICITORS: Wadham-Smith & Co, London.
Copyright notice: Crown Copyright