Last Updated: Tuesday, 19 August 2014, 14:59 GMT

R v. Secretary of State for the Home Department, Ex parte Mowla; R v. Secretary of State for the Home Department, Ex parte Patel

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Court of Appeal (Civil Division)
Publication Date 6 December 1990
Citation / Document Symbol [1991] Imm AR 210, [1992] WLR 70
Cite as R v. Secretary of State for the Home Department, Ex parte Mowla; R v. Secretary of State for the Home Department, Ex parte Patel, [1991] Imm AR 210, [1992] WLR 70, United Kingdom: Court of Appeal (England and Wales), 6 December 1990, available at: http://www.refworld.org/docid/3ae6b713a.html [accessed 20 August 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

COURT OF APPEAL (CIVIL DIVISION)

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte MOWLA; R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte PATEL

[1991] Imm AR 210, [1992] WLR 70

Hearing Date: 19, 20 November, 6 December 1990

6 December 1990

Index Terms:

Legitimate expectation -- persons with limited leave left United Kingdom during currency of leave, for short visits abroad -- passports contained s 3(3)(b) and "visa exempt" stamps -- refused leave to enter, on return to United Kingdom -- whether the stamps in their passports gave rise to a legitimate expectation that they would be re-admitted -- the judgment in Oloniluyi explained -- whether on the facts refusals of leave to enter were reasonable. Immigration Act 1971 ss 3(1), 3(3)(b), 3(4), 13(3), 14, 33(1): HC 388 paras 14, 17, 26-31, 58, 60, 78.

Held:

Appeals from judgments of Roch J and Hodgson J. Both Mr Mowla and Mr Patel had had limited leave to remain in the United Kingdom at the time when they decided to travel abroad. Each had in his passport a section 3(3)(b) stamp and a "visa exempt" stamp. On return to the United Kingdom they were refused leave to enter: in the case of Mr Mowla the immigration officer concluded that he had worked in breach of the condition attached to his stay: in the case of Mr Patel the immigration officer concluded that he had not been attending a bona-fide educational institution. The full details of the background to the cases are set out in the judgment of Glidewell LJ.

Applications were made for judicial review. It was contended, on the basis of Oloniluyi that the applicants had had a legitimate expectation, in the light of the stamps in their passports, that they would be re-admitted to the United Kingdom. It was further argued that they had suffered detriment because of the less favourable rights of appeal they enjoyed after being refused leave to enter: they could only appeal from abroad. Roch J granted the application of Mr Mowla: the Secretary of State appealed: Hodgson J dismissed the application of Mr Patel, who appealed.

The same arguments were repeated in the Court of Appeal as in the hearings at first instance.

Held:

1. A s 3(3)(b) stamp and a "visa exempt" stamp did not, either singly or together amount to a representation that the passport-holder would be granted leave to re-enter.

2. Those stamps created no legitimate expectation: if the court were wrong on that, the representation would be limited to a representation that the passport-holder would be granted leave to re-enter unless any information had come to light justifying refusal of leave, since the earlier leave had been granted.

3. In both the case of Mr Mowla and that of Mr Patel there had been such new information as justified refusal of leave to re-enter.

4. The difference in rights of appeal accorded by the Act to those refused leave to enter and those refused a variation of leave in the United Kingdom was not a factor that the immigration officer should take into accuunt in deciding whether to grant leave to re-enter.

5. The facts as to the passport-holder's previous immigration history were of great relevance: if those were ignored by an immigration officer his decision would be open to challenge on normal Wednesbury principles.

6. Per Glidewell LJ: it was desirable for there to be consistency in decisions on the same facts: if it could be shown that an immigration officer had refused leave to re-enter on materially the same facts as those on which earlier, leave to enter had been granted, such a refusal would be open to challenge on the grounds of procedural unfairness.

7. Per Ralph Gibson LJ: there was no rule that if an application to re-enter were based upon facts which in no material way differed from those on which earlier leave had been granted, the immigration officer would be bound to grant leave. Parliament had required that the immigration officer should make the decision "fairly and properly . . . in the light of all the relevant circumstances and upon the information then made available . . . it could not be faulted by the court upon the basis of comparison between the facts then known and the facts which it may be alleged were known . . . at the time of an earlier decision."

8. Per Ralph Gibson LJ: the concept of legitimate expectation could not provide the basis in the law relating to immigration for any substantive right. Something said earlier by an official of the Home Office could not be held to have given rise to a right that an immigration officer had to grant leave to enter.

9. The court explained the special circumstances which had led to its decision in the case of Oloniluyi: the subsequent use of that judgment in some appeals illustrated "the dangers of taking words used in judgments out of their context."

Cases referred to in the Judgment:

CSSU v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935. R v Inland Revenue Commissioners ex parte Preston [1985] AC 835; [1985] 2 All ER 327.

Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. Balogun v Secretary of State for the Home Department [1989] Imm AR 603. Kuku v Secretary of State for the Home Department [1990] Imm AR 27. R v Secretary of State for the Home Department ex parte Mowla [1990] Imm AR 244. Bagga and ors v Secretary of State for the Home Department [1990] Imm AR 413. R v Secretary of State for the Home Department ex parte Girishchandra Patel [1991] Imm AR 14.

Counsel:

A Riza for the appellant Patel; A Collins QC and J Fenwick for the Secretary of State; There was no appearance on behalf of the respondent Mowla.

PANEL: Lord Donaldson MR, Glidewell, Ralph Gibson LJJ

GLIDEWELL LJ:

These are appeals against decisions of Roch J and Hodgson J on applications for judicial review of decisions of immigration officers to refuse the applicants, Mr Mowla and Mr Patel, leave to enter the United Kingdom. Although the two applications were in no way connected with each other, both appeals raise essentially the same points, and we have therefore heard them together. It is convenient to start by summarising the facts.

Mr Mowla

He was born in, and is a citizen of, Bangladesh, and is now aged 34. He first arrived in the United Kingdom in February 1987. He was then in possession of a visa which he had obtained from the British High Commissioner in Malta. On arrival he was admitted to the United Kingdom as a visitor for a period of six months.

After Mr Mowla had been in the United Kingdom for some two months he enrolled for an English course at a college in Tottenham Court Road, London. He was entitled to do this under the conditions of his permission to enter the country. He then applied for consent to remain in the United Kingdom and was granted leave to remain until 26 September 1988. In the summer of 1988 he made a further application to be allowed to remain in the United Kingdom, and on 26 September 1988 he was granted leave to remain until 30 November 1989.

This leave was notified to Mr Mowla by a series of notices which were stamped in his passport. They read as follows:

1. "Leave to remain in the United Kingdom on condition that the holder does not engage in or change employment paid or unpaid without the consent of the Secretary of State for Employment, and does not engage in any business or profession without the consent of the Secretary of State for the Home Department is hereby given until 30th November 1989."

This was signed on behalf of the Home Secretary and dated 26 September 1988. I will call this "the leave stamp".

2. "This will apply, unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above."

I will call this the section 3(3)(b) stamp.

3. "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before 30 11 89".

I will call this "the visa exempt stamp".

In December 1988 Mr Mowla returned to Bangladesh in order to marry, and on 3 February 1989 he was married in that country. An application was made for entry clearance for his wife to come to the United Kingdom as a visitor, but this was refused. Mr Mowla returned to the United Kingdom alone on 21 March 1989, and was granted leave to enter.

In July 1989 Mr Mowla enrolled for the English course at the college he had been attending for the academic year 1989-90, which was due to begin in September 1989. Meanwhile, on 25 July 1989 he left the United Kingdom and went to Bangladesh. He returned to the United Kingdom on 7 September 1989.

In the meantime the immigration officers at Heathrow Airport had received information which led them to believe that Mr Mowla, despite the conditions on the leave stamps, had taken paid employment. On his arrival he was therefore interviewed, and he admitted after some prevarication that he had indeed been in paid employment, starting in January or February 1988. He said that until May or June of 1989 he had been working for five days a week in most weeks as a waiter in a restaurant. He also said that the English course would be of little practical use to him when he returned to Bangladesh, where he intended to help to run his father's pharmacy business.

The immigration officer concluded that, as Mr Mowla had been in paid employment, he was not satisfied that he was a genuine student or that he would leave the United Kingdom on the completion of his studies. He therefore refused him leave to enter the United Kingdom on 7 September 1989.

As I have said, this decision was challenged by way of an application for an order of certiorari quashing the decision. The application was heard by Roch J who, on 13 December 1989, granted the application and quashed the decision. The Home Secretary now appeals against the learned judge's decision.

Mr Patel

He was born in, and is a citizen of, India, now aged 31. He first came to the United Kingdom on 10 June 1985, when he sought and was granted leave to enter and to stay for three months, on condition that he did not enter employment, paid or unpaid. He applied for, and was granted by the Home Secretary, two extensions of his leave, subject to the same conditions, the second of which expired on 31 March 1986.

Before that date was reached, Mr Patel began a language course in English. He was granted a further extension of leave to remain as a student until 30 June 1987. This leave was notified to him by two stamps in his passport, namely, a leave stamp and a section 3(3)(b) stamp. The leave to remain as a student was extended by the Home Secretary on two further occasions, the second leave expiring on 30 September 1989. Each of these renewed leaves was communicated by three stamps in his passport, namely, a leave stamp, a section 3(3)(b) stamp and a visa exempt stamp.

From April 1987 onwards, Mr Patel was engaged, or was allegedly engaged, in a course on computer studies at an institution called "Capital College". During the second year of these studies, Mr Patel left the United Kingdom on 25 January 1989 in order to visit his father in India. He returned to the United Kingdom on 12 March 1989.

The Home Office already knew that Capital College was a very modest institution occupying two rooms, and with only the most rudimentary of student registers. Nevertheless, they had accepted previously that Mr Patel was engaged as a bona fide student at this college. However, early in 1989 the Home

Office received information that Capital College was not a genuine academic institution, but merely supplied false references and records of attendance for persons who were alleged to be students, in order to enable them to remain in the United Kingdom. On Mr Patel's return to the United Kingdom on 20 March 1989 he was interviewed by immigration officers. In the light of his answers, they were not satisfied that he was following, or intending to continue to follow, a full-time course of organised study, nor that he was a genuine student who would leave the United Kingdom on the completion of his studies. Accordingly, on that day, he was refused leave to enter on those grounds.

Mr Patel sought to challenge this decision by an application for judicial review to quash the decision. The application was heard by Hodgson J who, on 5 June 1990, dismissed it. Mr Patel now appeals against this decision.

The points at issue

The main points at issue in both these appeals are:

(i) Do the section 3(3)(b) stamp and the visa exempt stamp, singly or together, amount to a representation that the passport-holder will be granted leave to re-enter the United Kingdom on his return from abroad?

(ii) If so, the extent and terms of such a representation.

(iii) The effect of such a representation on a decision by an immigration officer.

The legislation

The relevant statutory provisions are contained in the Immigration Act 1971, as amended by the British Nationality Act 1981 and the Immigration Act 1988.

Mr Mowla and Mr Patel are not British citizens. By section 3(1) of the 1971 Act they therefore may not enter the United Kingdom except with leave given in accordance with the Act. Such leave may be for either a limited or an indefinite period, and may be given subject to conditions restricting, amongst other matters, employment.

Section 3(3) provides:

"In the case of a limited leave to enter or remain in the United Kingdom,

(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying, or revoking conditions . . .; and

(b) the limitation on and any conditions attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave."

I make two comments about these provisions. Firstly, once leave to enter or remain in the United Kingdom is given, the leave itself cannot be revoked. However, the duration of leave to stay or remain in the United Kingdom may be varied by reducing it, which will have much the same effect as revocation. Secondly, paragraph (b) has the effect that, if a person has been given leave to remain in the United Kingdom for, say, 12 months, and during that time he leaves the United Kingdom for a short period, if he is given leave to re-enter within the 12 months the original conditions on his leave will continue to apply to him unless they are specifically altered. Thus there will be no need to notify him of new conditions unless it is intended to alter them. It will thus frequently be the case that a person who re-enters in this way will be permitted to remain for the duration of his original leave.

By section 3(4):

"A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there) . . ."

The effect of this provision is tempered in relation to whose who have indefinite leave to remain in the United Kingdom by paragraph 58 of HC 388, to which I shall refer later.

Section 4(1) provides:

"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) shall be exercised by the Secretary of State . . ."

Part II of the Act, commencing with section 12, provides for a system of appeals against decisions in immigration matters to an adjudicator with, in certain circumstances, a further appeal to an Immigration Appeals Tribunal. A passenger who seeks, but is refused, leave to enter the United Kingdom has a right of appeal, but section 13(3) of the Act provides that, unless he holds a current entry clearance or work permit, he may only exercise that right after he has left the United Kingdom. On the other hand, section 14 gives to a person who is in the United Kingdom with a limited leave, and who is refused an extension of the period for which he may remain, a right of appeal against that decision while still remaining in this country. The phrase "entry clearance" is defined in section 33(1) of the Act as meaning a visa, entry certificate, or other (similar) document.

The immigration rules

When Mr Patel was refused leave to enter the United Kingdom the immigration rules in force were contained in HC 169, as amended. By the time that Mr Mowla was refused leave in September 1989, the relevant rules were those contained in HC 388, which came into force on 8 July 1989. There is however, so far as the facts of these two appeals are concerned, no material difference between these two sets of rules, and I shall therefore refer to the provisions in HC 388.

Under paragraph 14 and the appendix to these rules, nationals of Bangladesh and India

"Must produce to the Immigration Officer a passport . . . 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."

However, there is an exception to this which applies to nationals of those countries who seek leave to enter the United Kingdom on return within the period of an existing leave to remain in the United Kingdom for a limited period, where the conditions of that leave apply by virtue of section 3(3)(b). Both Mr Mowla and Mr Patel fell into this category, and therefore were exempt from obtaining visas.

Paragraph 17 of HC 388 reads as follows:

"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 clearance; or

(b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission, . . .;

(c) [is not here relevant]"

It will be seen that the effect of paragraph 17 is to reverse the burden of proof and, in cases to which it applies, to put it upon the immigration officer to be satisfied that there is one of the specified grounds for refusing admission to somebody who holds an entry clearance. However, this does not apply to somebody who is exempt from obtaining an entry clearance, and therefore the normal requirement that it is for the passenger to prove the facts upon which he bases his claim to enter the United Kingdom applies to both these applicants.

Students are covered by paragraphs 26-31 of HC 388. By paragraph 26,

"A passenger seeking entry to study in the United Kingdom should be admitted (subject to paragraph 17) 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 . . . an independent school or any bona fide private education institute; that the course will occupy the whole, or a substantial part of his time; and that he can, without working, without recourse to public funds, meet the cost of the course and of his own maintenance and accommodation . . . during the course."

By paragraph 27:

"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."

I have already referred to paragraph 58. This provides that:

"A passenger returning to the United Kingdom from overseas . . . is to be admitted for settlement on satisfying the Immigration Officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than two years."

This is to be contrasted with the provision in paragraph 60 which applies to those whose leave to enter was subject to a time limit. This reads:

"A passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident. His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time limit, and any conditions attached, may be reimposed or it may be more appropriate to treat him as a new arrival."

The first sentence of this paragraph merely reiterates the effect of section 3(4) of the Act in relation to persons who have only temporary leave to remain in the United Kingdom. The second sentence tells the immigration officer how he should treat the application for leave to re-enter. The third sentence applies if the immigration officer has decided to grant leave to re-enter, and then has to decide whether to apply the existing time limit and conditions, or apply new conditions and a new time limit, in which case the applicant is to be treated as a new arrival.

I refer finally to paragraph 78 which starts with the words:

"A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter.

Submissions

Mr Riza appeared for both the applicants at the hearings in the court below. Before this court he is only instructed for Mr Patel, but the submissions he makes cover also the appeal by Mr Mowla.

I summarise his submissions as follows:

1. The section 3(3)(b) stamp and the visa exempt stamp which followed the leave stamp amounted to a representation that, if Mr Patel left the United Kingdom and sought leave to re-enter before the date on which his latest leave to remain expired, he would be granted leave to re-enter. Alternatively, Mr Riza submits, the section 3(3)(b) stamp and the visa exempt stamp were so confusing in their wording as to mislead a person in the position of Mr Patel, and thus amount to the representation to which I have referred. This representation raised a legitimate expectation that, when Mr Patel sought to re-enter, he would be granted leave. The refusal of leave to enter was in breach of that expectation.

2. Mr Riza accepts that a visa exempt stamp is not, itself, a visa or any other form of entry clearance, and that it does not have the effect of a visa: see the decision of this court in R v Secretary of State for the Home Department ex parte Balogun [1989] Imm AR 603. The effect of section 13(3) of the 1971 Act is that, if a visa national has a visa or other entry clearance stamped in his passport and is refused leave to enter the United Kingdom, he may exercise his right of appeal whilst remaining in this country. On the other hand, if he merely has a visa exempt stamp, he may not exercise the right of appeal until he has left the United Kingdom. Clearly a right to appeal while the appellant is outside the United Kingdom is of much less use and an appeal less likely to succeed than if the appellant had been able to remain in this country pending his appeal. This is a factor which an immigration officer considering an application for leave to re-enter from a person in the position of Mr Patel should taken into account when making his decision. The decision in this case should be quashed because it is apparent that the immigration officer did not take this factor into account, or there is no evidence that he did.

3. A decision to refuse leave to a passenger to re-enter when that passenger before he left the United Kingdom had leave to remain in the United Kingdom granted to him by the Home Office for a period expiring after the date when he seeks to re-enter is prima facie inconsistent. The consistency of decision-making, at least in relation to applications by a single individual, is a principle of good administration. Unless there is some valid explanation for the inconsistency, this is a ground upon which the inconsistent second decision should be quashed.

The principal decision upon which Mr Riza relies for the first and second of these submissions is the decision of this court in Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. The appellant in that case was a Nigerian citizen who had been admitted to the United Kingdom as a visitor. She applied for her leave to be varied to allow her to remain as a student. The effect of the application was to extend her leave to remain in the United Kingdom until such time as a decision on the application had been made. For some unexplained reason no such decision was made for over 12 months. During that period, the appellant started her course as a student. She also, for a brief period, took paid employment, in breach of the conditions of her leave to enter. The Home Office came to know of this breach and apparently decided to disregard it.

About a year after making her application for leave to remain as a student, the appellant wished to return to Nigeria for Christmas. Before she did so, she visited the Immigration Branch of the Home Office at Lunar House in Croydon. The purpose of her visit no doubt was to enquire both as to the progress of her application and whether there would be any problem in her re-entering the United Kingdom. The official who interviewed her stamped into her passport a notice that she had leave to remain in the United Kingdom until 31 January 1987, together with a section 3(3)(b) stamp and a visa exempt stamp. According to her evidence, which was not contradicted and which the court accepted, he also told her that she would "have no trouble in returning to the United Kingdom as long as she came back before 31 January 1987 when her leave expired".

She left the United Kingdom and travelled to Nigeria on 13 December 1986. She returned on 6 January 1987 but after investigation was refused leave to enter on 15 January 1987.

She applied for judicial review to quash the decision to refuse her leave to enter. Her application was refused by Macpherson J, but her appeal to this court succeeded.

In his judgment Lord Donaldson MR said, at page 141:

"What is to the point is whether the respondent has treated the applicant unfairly by refusing leave to re-enter the United Kingdom after creating a legitimate expectation that she would have no trouble in doing so. What is also to the point is whether the immigration officer and the Secretary of State misdirected themselves in law in failing to take account of this factor and of the fact that, faced with a choice of allowing her to re-enter for the remainder of her original period of leave, ie until 31 January 1987 or indeed any lesser period as short as one day, and refusing her leave to enter, by adopting the latter option they thereby deprived her of the section 14 right of appeal against the implied refusal of her application of December 1985 which should have been determined long before she left the country for her Christmas holiday in Nigeria."

The Master of the Rolls then set out the provisions of what is now paragraph 60 of HC 388 and continued:

"Mr Havers for the respondent seemed to be submitting that this rule gave the immigration officer a free choice whether in effect to reinstate the original leave or to treat the applicant as a new arrival. I incline to the view that it would only be appropriate to treat a returning visitor as a new arrival if this would lead to his being treated more favourably than would otherwise be the case or if it was clear that he was returning in a new capacity or if information was available which would have justified the revocation of the earlier leave. The applicant was returning in the same capacity as that in which she had left, namely as a visitor who had applied for a student's extension, and no information appears to have been available which would have justified the revocation of the earlier leave. But, however that may be, the relevant circumstances clearly included the fact that, when the applicant left this country for her Christmas holiday, she had an outstanding application for an extension of her leave to remain which was nearly a year old and which, if refused, would have given her a section 14 right of appeal. They also included the fact that the applicant's passport had been stamped "visa exempt" and with the section 3(3)(b) endorsement which would clearly indicate to the average visitor that there should be no problem in re-entering this country for the balance of the existing period of leave, even without account being taken of what the official at Lunar House is alleged to have said. In particular, the section 3(3)(b) endorsement clearly contemplates that subsequent leave is likely. None of these circumstances appeared to have been taken into account."

I have already set out in my view of the effect of paragraph 60 of HC 388. If a person who leaves the United Kingdom seeks to re-enter before the expiry date of a leave to remain in this country granted to him previously the immigration officer has to make two decisions. Firstly, he has to decide whether to give the passenger leave to re-enter. If he does so decide, then secondly he may simply allow the passenger to re-enter and resume his existing leave to remain up to the expiry date on that leave, or he may treat him as a new arrival and give him a fresh leave to enter with new conditions and perhaps a new expiry date. This in my view is the effect of the last sentence of paragraph 60.

In his judgment Dillon LJ said at page 144:

"Most importantly for present purposes, however, the appellant asserts that the official at Lunar House told her that she would have no trouble in returning to the United Kingdom as long as she came back before 31 January 1987 when her leave expired. There is no evidence from the Crown to challenge this."

At page 145 he continued:

"But, if an assurance was given by the official, what was its scope? He cannot be supposed to have given her an assurance that she would be admitted whatever the circumstances of her return prior to 31 January -- even if she arrived with guns or bombs or smuggling drugs or even if the Secretary of State had, by the time of her return, resolved that her exclusion would be conducive to the public good. Such matters as these would have been outside the contemplation of the discussion between the appellant and the official. Any assurance given would at the highest merely have been that, if she did come back as a would-be returning student before 31 January 1987, she would in the absence of any other obstacle be admitted, so that, having then paid the fees for a further year at her college, she could apply before 31 January for an extension of leave to remain to complete her studies. In my judgment, the true interpretation of the evidence is that she was given such an assurance, which raised in her a legitimate expectation that she would be re-admitted when she returned to Heathrow, in fact on 5 January 1987."

Dillon LJ's judgment concluded:

"On the facts of this case, the appellant had a legitimate expectation that she would be re-admitted as a returning student when she presented herself at Heathrow on 5 January. It was therefore wrong that she was refused admission on the grounds specified in the notice of refusal, that the immigration officer was not satisfied that she was a genuine student who intended to leave the United Kingdom on completion of her studies.

I would accordingly allow this appeal and quash the refusal of leave to enter."

Staughton LJ agreed with both judgments.

It is apparent that Dillon LJ based his judgment on the oral representation by the official at Lunar House giving rise to a legitimate expectation. The Master of the Rolls based himself in part on this but, in the passage I have quoted from his judgment at page 142 of the report, he appeared also to be basing his decision on the other considerations to which he there refers.

In his decision in ex parte Mowla Roch J said at page 17 of his transcript:

"In my judgment, the important point from these cases is that the courts have been under the impression that a visa exempt stamp and a section 3(3)(b) stamp were concessions specially made to visa nationals who have leave to remain in the United Kingdom and who might wish to make short visits abroad during that period of leave to remain, that the section 3(3)(b) endorsement clearly contemplates that subsequent leave to enter is likely . . .

If that is so it is hardly surprising that a person such as the applicant in the present case might believe that if he went abroad for a short period of time during the currency of his leave to remain in the United Kingdom he would not be at risk on re-entry within the period of the original leave of being refused leave to enter and of being forced to return to his own country to mount an appeal against that refusal.

In my judgment, the endorsing of a visa national's passport with these stamps, with their present wording viewed objectively, do amount to representations on the part of the immigration authority that the holder of the passport will have no trouble in returning to the United Kingdom as long as he or she returns within the period of leave to remain current at the moment he or she leaves the United Kingdom for a short visit abroad, providing he or she is returning in the same capacity as that for which the person had leave to remain in the United Kingdom and there is no information available which would have justified the revocation of the earlier leave.

Mr Fenwick submitted that there was no evidence that the applicant had relied upon any such representation. It is true that no such assertion is expressly made in the applicant's affidavits. However, I accept the submission of Mr Riza that the applicant must have read and relied upon the stamps on his passport, because the applicant was a visa national, and yet he did not apply for a visa in order to re-enter the United Kingdom. Consequently, he must have read and been relying upon the endorsements on his passport, because no one suggests that Mr Mowla was familiar with the terms of the appendix to the immigration rules HC 388 of 1989.

As I have already said, the legitimate expectation is that the visa national will not be refused entry provided that he returns in the same capacity as that in which he had leave to remain in the United Kingdom, and provided that no information exists which would have justified the revocation of the earlier leave."

On the other hand, in his judgment in ex parte Patel, Hodgson J said, at page 11 of the transcript, of the section 3(3)(b) and visa exempt stamps:

"To elevate these two stamps into the representations said to have been made seems to me to be an impossible task. The most the 'visa exempt' stamp tells the passport holder is that he does not need a visa, and the section 3(3)(b) stamp plainly tells him that he will need leave if he returns within the period and that the same conditions will apply unless superseded. In fact, in my judgment, the visa exempt stamp is not, as it were, addressed to the passport holder at all, but to the immigration officer. I do not think they can possibly amount to representations such as could amount to estoppel by representation."

The learned judge then considered the judgments in Oloniluyi's case. Later, Hodgson J referred to Roch J's judgment and said at page 15:

"It was one passage in the Master of the Rolls' consideration of the relevant circumstances ground which has, in my judgment, led one judge into error. In holding that the stamps were a relevant circumstance, which ought to have been taken into account, he said that this was because they would 'clearly indicate to the average visitor that there should be no problem in re-entering this country . . . even without account being taken of what the official at Lunar House is alleged to have said'. In R v Secretary of State for the Home Department ex parte Mowla [1990] The Times Law Reports 29, Mr Riza persuaded Roch J that the Master of the Rolls would have found that the stamps alone amounted to a representation giving rise to an estoppel and, on that basis, Roch J found that they did. With great respect I think that, in so reading the Master of the Rolls' judgment and in so holding the learned judge fell into error. I have already said that, in my judgment, the stamps alone could not possibly be held to amount to a representation giving rise to an estoppel on established rules of public law."

Hodgson J therefore dismissed Mr Patel's application.

In reply to Mr Riza, Mr Collins for the Home Secretary makes the following submissions:

1. The section 3(3)(b) stamp and the visa exempt stamp, either taken together or separately, do not when properly read convey any representation that the passport-holder, if he leaves the country and seeks to re-enter before the date which he was earlier given leave to remain, will be granted leave to re-enter.

2. Thus the two stamps do not raise a "legitimate expectation" that the passport holder will be given leave to re-enter the United Kingdom, as explained by Lord Diplock in his speech in CCSU v Minister for the Civil Service [1985] AC 374 at p 408G-H.

3. The difference between the rights of appeal granted by sections 13 and 14 of the Act respectively to persons who, not being in possession of entry clearance, are refused leave to enter the United Kingdom and those who being already in the United Kingdom with leave are refused an extension of that leave is one which has been laid down by Parliament in the statute. This difference is not, of itself, a relevant factor for an immigration officer to take into account in deciding whether or not to grant leave to enter to a person who has previously had a limited leave. In other words, this is not a factor he should put into the scales against other matters which may be valid reasons for refusing leave.

Nevertheless, the fact that a person has previously been given limited leave to enter and has had his leave extended by the Home Office, all the circumstances relating to his stay in the United Kingdom during the currency of that leave, and the fact that the section 3(3)(b) stamp and the visa exempt stamp have been placed in his passport, are all relevant considerations for the immigration officer to take into account.

4. While consistency in decision-making is desirable, it is not to be elevated into a principle so that consistency is to be achieved at the expense of an immigration officer exercising his undoubted discretion properly.

I have reached the following conclusions on these competing submissions. Firstly, I agree with Mr Collins that the section 3(3)(b) stamp and the visa exempt stamp do not either singly or together amount to a representation that the passport-holder, if he leaves the country and returns before the date to which he previously had a limited leave, will be granted leave to re-enter. The visa exempt stamp is an attempt to set out shortly the effect of paragraph 14 and the appendix to the immigration rules. The stamp does not grant any additional rights to the passport-holder. In a grant of leave to re-enter, the section 3(3)(b) stamp is a convenient way of incorporating the conditions and restrictions formerly contained in the limited leave, without having to record them again.

It follows that I agree with Mr Collins that these two stamps do not create for the passport-holder a legitimate expectation that he will be granted leave to re-enter.

Moreover, even if I am wrong in the view I have just expressed, any representation contained in the stamps would in my view clearly be limited in the same way as the expressed representation in Oloniluyi was said by Dillon LJ to be limited, ie, it would be a representation that the passport-holder would be granted leave to re-enter unless any information had, in the meantime, come to the notice of the immigration officer which was not before the Home Secretary when he decided to grant the limited leave to remain. Clearly, the immigration officer would be bound to take into account any such relevant information, and would be entitled if it were material to refuse leave on the basis of that information. On the facts of these two cases, there was such information which justified the two immigration officers in coming to decisions different from those to which the Home Office had previously come. In Mr Mowla's case there was the information that, contrary to the conditions in his leave to remain, he had been in paid employment, a fact which Mr Mowla himself substantially admitted. This justified the conclusion that the immigration officer was not satisfied that Mr Mowla was a genuine student or that he would leave the United Kingdom on the completion of his studies. As to Mr Patel, the further information about Capital College justified the immigration officer in concluding that it was not a genuine academic institution, but was ready to supply false records of attendance to its "students". This, in turn, justified the conclusion that the immigration officer was not satisfied that Mr Patel was following a full-time course of organised study or that he was a genuine student who would leave the United Kingdom on the completion of his studies.

This is enough to dispose of these two appeals. However, since during the course of discussion various other issues were canvassed, I think it right to express my views upon them shortly.

My first comments relate to passages in the judgment of my Lord, the Master of the Rolls, in Oloniluyi, upon which, as I have already said, Mr Riza really founded his arguments. The submission made by Mr Collins, that the difference between the rights of appeal granted to a person who is refused leave to enter the United Kingdom and to a person who is refused an extension of a leave to enter or remain which he has already been granted, is not a factor which an immigration officer should take into account in deciding whether to grant leave to re-enter is in my view correct. In those passages in his judgment at pages 141 and 142 at which the Master of the Rolls did refer to this matter, he expressly referred also to the fact that in that case the appellant's application for an extension of her leave had remained undecided for about a year at the time when she went to Lunar House. I understand my Lord in this part of his judgment to have been basing himself on the proposition that, in the context of that very considerable delay, the appellant had been treated unfairly, and that this was a reason for quashing the decision not to allow her to re-enter.

However, I also agree with Mr Collins that the facts as to the passport-holder's previous leaves to enter and remain in the United Kingdom, and his or her conduct and history while in the United Kingdom, are of great relevance to the immigration officer. If it can be shown that some important part of these facts has been disregarded by the immigration officer, his decision to refuse leave to enter could be challenged on normal Wednesbury principles.

My Lord, the Master of the Rolls, also commented about the effect of the stamps in Miss Oloniluyi's passport. To repeat, he said that the stamps

"would clearly indicate to the average visitor that there should be no problem in re-entering this country for the balance of the existing period of leave . . ."

I have already said that the stamps do not amount to a representation as claimed. But, if my Lord was indicating his view that, whatever they may mean to the lawyer, their wording is capable of leading the lay passport-holder to the wrong conclusion, this does not conflict with the views that I have expressed. In R v Secretary of State for the Home Department ex parte Balogun [1989] Imm AR 603 Neill LJ said at page 608:

"Nevertheless, I regard it as satisfactory that consideration is presently being given to making some addition to the wording of the (visa exempt) stamp so as to make the effect of the stamp absolutely clear. A person who leaves this country with this stamp in his or her passport should be left in no doubt whatever that if he or she returns he or she will require leave to obtain entry."

This observation as specifically endorsed by Woolf LJ in Kuku v Home Secretary [1990] Imm AR 27 at page 36. I respectfully add my support to these observations.

I also observe that in my view it clearly is desirable that so far as possible decisions made on the same facts about an applicant for entry or for leave to remain for an extended period should be consistent with each other. If it can be shown that an immigration officer on facts which in no material way differ from those which were before the Home Office when it was decided to grant the applicant leave to remain for a limited period, has reached a different conclusion and has refused leave to enter, then it may well be that the later decision could be challenged in the High Court, either on the ground of irrationality or, I think more probably as Mr Collins suggested, on the ground of procedural unfairness: see IRC v Preston [1985] AC 835, particularly passages in the speeches of Lord Scarman at page 851F to 852C and Lord Templeman at page 866H to 867C.

However, in both the present cases, as I have already said, there was information available to the immigration officers which was not available to the officers in the Home Office who had made the earlier decisions. It follows that in neither of the present cases does any question of inconsistency arise, and the Preston principle can therefore have no application.

For these reasons, I would allow the appeal of the Home Secretary on Mr Mowla's application, and dismiss Mr Patel's appeal.

RALPH GIBSON LJ:

I agree that the appeal of the Home Secretary on Mr Mowla's application should be allowed and that the appeal of Mr Patel should be dismissed for the reasons given by Glidewell LJ, namely:

(i) the section 3(3)(b) stamp and the visa exempt stamp do not either singly or together amount to a representation that the passport-holder, if he leaves the country and returns before the date to which he previously had a limited leave, will be granted leave to re-enter;

(ii) the two stamps therefore do not create a legitimate expectation that he will be granted leave to re-enter; and

(iii) if, contrary to that view, any representation had been contained in the stamp, (a) it would in any event be no more than a representation that leave would be granted unless any information had, meanwhile, come to the notice of the immigration officer which was not before the Home Secretary when he decided to grant the limited leave to remain; and (b) on the facts of these two cases there was such information as justified the decisions to refuse leave.

As to the arguments advanced upon the decision of this court in Oloniluyi, I agree with Glidewell LJ that the difference between the rights of appeal available to a person who is refused leave to enter and a person who, after entry, is refused an extension of leave to remain, is not a factor which the immigration officer is required to take into account in deciding whether a passenger has satisfied the requirements for the grant of leave to re-enter. That difference, which has been imposed by Parliament for obvious reasons, is no more than a consequence of the decision which the immigration officer is required to make and which the immigration officer knows is a decision of importance, and sometimes of great importance, to an individual passenger.

I agree also that the facts known to the immigration officer as to a passenger's previous leave to enter and remain in the United Kingdom and as to his or her conduct and history while in the United Kingdom, are clearly relevant as part of the "relevant circumstances" to which reference is made in rule 60 of HC 388 of 1989 in the case of a passenger returning after a temporary absence abroad. If a decision could be shown to have been made in disregard of those matters, then the decision would be open to challenge on ordinary principles but it is difficult to think of circumstances in which it could be shown that the immigration officer had failed to have regard to such matters because they would inevitably be before him.

I agree, further, that it is desirable that, so far as possible, decisions made on the same facts about an applicant, either for entry or for extended leave to remain, should be consistent. For my part, however, I am not persuaded that this court should indicate what consequences should follow if an immigration officer is said to have been faced with facts which in no material way differ from those which were before the Home Office when it was previously decided to grant the applicant leave to remain for a limited period. Glidewell LJ had said that it might well be that, if that immigration officer so faced with identical facts, should refuse leave to enter, his decision could be challenged in the High Court on the ground of irrationality or, more probably, on the ground of procedural unfairness on the basis of passages in in re Preston [1985] AC 835, 851F-852C; 866H-867C.

Lord Templeman in his speech in that case at page 866 said:

"In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation."

Mr Riza, of course, in his submission has contended that the Home Office can and, in these cases, did make representations that should be held to bind an immigration officer subsequently to grant leave to enter unless the immigration officer would be acting unlawfully -- ie contrary to some express grant or prohibition in the statute or rules -- by granting leave. He relied in particular on the judgment of Dillon LJ in Oloniluyi at page 146.

I am unable to accept that it is possible in law for a representative of the Home Secretary, dealing with an application for leave to remain, to be held to have made effective oral or implied representations to the effect that leave to enter or to remain will on some future occasion be granted so as to produce the consequence that the applicant is entitled in law to such leave. Parliament has by statute laid down the rules in accordance with which visitors to this country, who are not British citizens, shall be admitted or given leave or extended leave to remain. In particular it is provided by section 4 of the 1971 Act:

"(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) . . . shall be exercised by the Secretary of State; and, unless otherwise allowed by this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument."

In the case of Bagga [1990] Imm AR 413 this court held that the provisions of section 4(1) as to leave being by notice in writing are mandatory and not merely directory. It is, I think, obvious that one of the reasons why such a rule was enacted is that large numbers of persons apply for entry or for leave to remain and it would be impossible in most cases to determine satisfactorily after the event what had or had not been said orally as to leave to enter or to remain or as to the terms or conditions of leave. Similarly, it would frequently be impossible to determine satisfactorily what, if anything, had been said orally as to whether on some future occasion leave to enter or to remain would be given and on what terms. Further, the statute provides by section 3(4) that a person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area. Upon seeking leave to re-enter, that person, assuming him to have no entry clearance, faces the normal requirement that he prove the facts upon which he bases his claim to enter the United Kingdom. The immigration officer is required to consider the matter in accordance with the rules and must have regard to "all the relevant circumstances". That must mean the circumstances known to him after the conduct of the examination under the provisions of schedule 2. There is no rule that, if an application to enter is based upon facts which in no material way differ from those which were before the Home Office when leave to remain for a limited period was given, the immigration officer must grant leave to enter; and it would, I think, be surprising if there were such a rule if only because of the difficulty which would arise for an immigration officer to know whether the facts known to him were or were not different in any material way. I think it is plain that Parliament has required that the decision, whether or not to grant leave to enter to a passenger who is returning and to whom rule 60 applies, shall be made fairly and properly by the immigration officer in the light of all the relevant circumstances and upon the information then made available. If a rational decision to refuse leave is then properly and fairly made having regard to the relevant circumstances, it is not clear to me how it could be faulted by the court upon the basis of comparison between the facts then known and the facts which it may be alleged were known to the Home Office at the time of an earlier decision most particularly when those facts include what is alleged to have been said orally by the applicant or an official.

A passenger seeking leave to re-enter may be mistaken, through no fault of his own, as to the requirement of proof of the facts upon which he seeks leave to enter. I agree with my Lords as to the clear desirability of the use of stamps in passports or of statements in other documents which will, so far as possible, remove the risk of such errors. I know of no reason, however, to suppose that, in any significant number of cases, passengers are refused leave to enter in circumstances which suggest real inconsistency of decision. As in the case where the facts clearly satisfy the requirements, so in the border line cases where, for example, there is room for real doubt as to whether the passenger can satisfy the requirements of paragraphs 26 and 27 of HC 388 relating to students, I think it is clear that the intention of Parliament as it is set out in the statute and the rules is that the decision is required to be made upon the facts then known to the immigration officer and I can see no need to lay down any additional rule or guidance.

Lastly, as to the concept of legitimate expectation, I have difficulty in seeing how it can properly provide the basis in the law relating to immigration for any substantive right, irrespective of the procedural propriety of the making of the decision to refuse leave to enter, by which the passenger can claim a right to enter. The decision to refuse entry may be open to attack upon Wednesbury grounds including irrationality, ie a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it: per Lord Diplock CCSU v Minister for the Civil Service [1985] AC 374 at page 410G. If the decision of the immigration officer, however, cannot be shown to have been unlawfuly made or irrational and if it was made in accordance with the procedure and rules laid down by Parliament, I do not accept that something said on an earlier occasion by an official of the Home Office can be held to have given rise to a right that the immigration officer must grant leave to enter. The purpose of section 3(4) of the 1971 Act, as it seems to me, is that, subject to the provisions of the rules, the passenger shall be required to satisfy the immigration officer of the facts upon which leave to re-enter is sought.

THE MASTER OF THE ROLLS:

I agree with the orders proposed by Glidewell LJ for the reasons which he has given, but add a word in recognition of the fact that I appear unwittingly to have been instrumental in creating some degree of judicial disagreement, as a result of my judgment in Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135.

Leave to enter and remain in this country is not a prison sentence. Leaving aside the case of someone who enters as a visitor on holiday or to attend a wedding or some other specific event, there is always a reasonable prospect that the immigrant may wish to travel briefly abroad to some place outside the common travel area, thereafter resuming his stay in this country for the balance of the period covered by his original leave and subject to the terms of that leave. He might for example, wish to take a day trip to Calais. However even such an excursion causes his leave to lapse (section 3(4) of the 1971 Act) and accordingly he has to seek leave to re-enter.

In this situation an immigrant may, I think, reasonably anticipate that leave to re-enter and remain for the balance of the period of the original leave will be given provided always that the immigration officer has no reason to believe that the original leave would not have been given if the full facts had been known or that there has been a change of circumstances since then, such as that whilst the immigrant, if a student, may originally have intended to leave this country at the end of his studies, this may no longer be the case or that the immigrant has breached the conditions of his entry. These provisos are of great importance and the immigration officer to whom the immigrant presents himself upon applying for leave to re-enter is entitled to satisfy himself that none of them applies. Where they do apply, there can be no reasonable anticipation of being allowed to re-enter and indeed the reverse may well be true.

In the case of Mowla, the applicant had breached the condition relating to employment. In the case of Patel, the immigration officer had reasonable grounds for believing either that, if the full facts had been known, the immigrant would not have been given leave to enter to study at the particular school or that there had been a change of circumstances as a result of which it was no longer clear that he intended to follow a full-time course of study and to leave the country at the completion of it or indeed was a genuine student. In these circumstances neither immigrant has any legitimate cause for complaint at being refused re-entry.

These appeals illustrate the dangers of taking words used in judgments out of their context. In Oluniluyi's case there were the following features which, taken together, persuaded me that the refusal of leave to re-enter should be quashed.

1. She had asked for leave to enter as a visitor and had been granted leave to remain as such for six months.

2. Whilst here as a visitor, she formed a fresh intention, namely to enrol as a student in a two year business studies course. This appeared to have been a genuine change of mind.

3. She was entitled to enrol in this course and attend it without any amendment of her leave to enter as a visitor, since this involved no breach of the terms of that leave. Her only problem was that it was a two year course and, unless she took some action, she would have to leave at the end of the period of six months from the date of her arrival.

4. She applied for an extension of her leave to remain upon the grounds that she wished to continue to attend this course, upon completion of which she would be leaving this country. This application of itself extended her leave until it had been dealt with (see Immigration (Variation of Leave) Order 1976).

5. For months the Home Office did nothing about her application and meanwhile she had a nearly 100 per cent attendance record on her course, which was a genuine course.

6. She had been in this country for 18 months when she decided that she would like to spend Christmas with her family in Nigeria. Instead of just going there, she visited Lunar House and was (on the evidence) assured that she would have no problem on seeking re-entry, provided that she did so before 31 January 1987. At that time Nigerians did not have to obtain visas, but it was known that such a requirement might well be imposed before the intended date of her return. In these special circumstances the "visa exempt" stamp on her passport was capable of reinforcing the assurance which she had been given that she would have no trouble re-entering.

7. If the Home Office had dealt with her application for an extension of her leave for the purpose of studying with any reasonable promptness, she would either have had an expressly extended leave or would have been able to appeal any refusal long before she wanted to pay this Christmas visit to her family. The refusal of leave to re-enter, coupled with the Home Office's dilatoriness, had deprived her of a right to a decision on her application and a right of appeal exercisable in this country in the event of refusal.

8. The only solid ground for refusing her leave to re-enter was that for a six week period she had taken employment in a hospital for two hours per day, the reason being that she wanted to meet people. I say "solid ground", because this was undoubtedly a breach of the conditions of her leave to remain, albeit in the circumstances a very minor one. However what robbed this of any force as a ground for refusing her leave to re-enter was that this breach had been known to the Home Office long before her visit to Lunar House and no action had been taken.

In these very special circumstances I had no doubt that, as I said, the decision to refuse leave to re-enter was unfair and involved a failure to take account of all relevant circumstances. If any of these features had been absent, I might well have reached a different conclusion. Such special circumstances are unlikely to recur and certainly did not occur in the case of either appellant.

DISPOSITION:

Appeal in the case of Mowla allowed: appeal in the case of Patel dismissed, leave to appeal to the House of Lords refused

SOLICITORS:

McGrath & Co, Birmingham, Treasury Solicitor

Copyright notice: Crown Copyright

Search Refworld

Topics