Kangeyan Rajendran v. Secretary of State for the Home Department

Kangeyan Rajendran v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1989] Imm AR 512

Hearing Date: 18 May 1989

18 May 1989

Index Terms:

Student -- refusal of variation of leave -- whether conditions attached to leave continued during leave enjoyed by virtue of the Variation of Leave Order -- whether Secretary of State entitled subsequently to substitute new reasons for refusal, different from those in the original notice of refusal -- whether any burden lay on the Secretary of State to seek out evidence of an applicant's financial support -- whether evidence only produced after the date of decision relating to a breach of condition occurring before the date of decision was admissible -- the effect of delay in considering an application for variation of leave -- whether where there was delay by the Secretary of State delay on the part of the applicant could be taken against the applicant -- whether on the facts the appellant could be regarded as a 'would-be' student. Immigration Act 1971 ss 3(3)(b), 14(1), 18(2); Variation of Leave Order 1976 a 3(1); HC169 (as amended by HC503) paras 98, 99.

Held:

The appellant was a citizen of Sri Lanka. He came to the United Kingdom in 1979 as a student. He was granted extensions of leave, but a further application for variation of leave made on 30 October 1984, was refused on 23 September 1987. An appeal against that refusal was dismissed by an adjudicator. On appeal to the Tribunal, a number of legal issues were raised. These, together with the complicated academic history of the appellant are fully set out in the determination. In particular, the appellant had broken the condition attached to his original leave and restricting employment, during the time he was in the United Kingdom with leave pursuant to the provisions of the Variation of Leave Order 1976. In an amended notice of refusal, the Secretary of State had relied inter alia on that breach of condition. It was argued that the Secretary of State was not entitled to do that and in any event, the condition attached to his original leave did not attach to leave derived from the 1976 Order. It was further argued that the evidence as to that breach of condition was inadmissible as being post-decision: the Secretary of State had himself delayed considering the application and should not therefore have taken against the appellant his delay in producing information requested by the Home Office. Held 1. Following Shaukat Ali and ex parte Lapinid, the conditions attached to an original grant of leave continued to be attached to leave secured pursuant to provisions of the Variation of Leave Order 1976. 2. On the settled cases, it was always open to the Secretary of State to put forward amended grounds for a refusal of leave. 3. On the facts, it had been the duty of the appellant to provide information which had been requested by the Home Office and he had failed to do so. 4. Even if the evidence as to employment in breach of condition only came to light after the date of decision, it related to matters which occurred before the date of decision and was accordingly admissible. 5. The appellant had suffered no detriment by the delays occasioned by the Secretary of State: that delay did not excuse delay in producing information, on the part of the appellant. 6. On the facts, the appellant could not be regared as a 'would-be' student and the views expressed by the Tribunal in Karunarajah had no application. 7. On the merits, the appeal would be dismissed.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Subramaniam [1976] Imm AR 155. R v Secretary of State for the Home Department ex parte Lapinid [1984] Imm AR 101. R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110. Shaukat Ali v Chief Adjudication Officer. The Times, 24 December 1985. Dagdalen v Secretary of State for the Home Department [1988] Imm AR 425. Naheem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98. Karunarajah (unreported) (6367).

Counsel:

G Warr for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President), Major D Francombe, IP Allnutt Esq OBE

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Sri Lanka, appeals against a decision to refuse to vary his leave to remain as a student. The background facts The appellant first arrived in the United Kingdom in 1979. He attended Southall College of Technology until 1982, and obtained a Higher National Diploma in Electrical and Electronic Engineering. The appellant's aim was apparently to become a qualified Chartered Engineer. His HND gave him exemption from Part I of the Chartered Engineering qualifying examinations. It is recorded in notes of an interview with the appellant at the Public Enquiry Office, that in 1982 the appellant enrolled for Part II of the Chartered Engineering course at the North East London Polytechnic. It is also recorded that the appellant left because he could not cope with the course. In September 1983, the appellant returned to Southall College and enrolled for a "college diploma". Successful completion of this would exempt him from three of the six subjects required for Part II of the Chartered Engineering course. In June 1984 the appellant was referred in one subject of that course, passing the remaining subjects. On 30 October 1984 the appellant applied for further leave to remain as a student and, somewhat suprisingly, it is this application which is at issue before us. The application was not refused until 23 September 1987, and between the date of application and the date of refusal, the appellant had undertaken a number of other courses. At the time of his application, the appellant was enrolled at Southall College in a part-time course, taking subjects of the Part II of the Chartered Engineers course. This course apparently required 12 1/2 hours of day time study a week. The appellant seems not to have taken any examinations in the academic year 1984 to 1985. In September or October 1985, the appellant enrolled at the Polytechnic of the South Bank. It is stated in a letter dated 28 February 1986 that he was "attending the Engineering Council Examination and the associated Microprocessor Project course". In September 1986 the appellant re-enrolled at the South Bank Polytechnic on a part-time course, leading to the examinations of the Engineering Council, in this course he being expected to attend for 7 1/2 hours per week. He also enrolled at the London School of Business and Computing, in a course leading to a Certificate in Applications Programming which required 8 hours per week study. In 1987 the appellant re-enrolled at South Bank Polytechnic, still apparently on the course leading to the Chartered Engineering qualifications and also continued to pursue his computing studies at the London School of Business and Computing. The evidence shows that in 1988 he obtained a Certificate in Computer Literacy of the City and Guilds of London Institute. This, it seems, enabled him to enrol in October 1988 for a Certificate in Applications Programming. It appears that while taking his HND course, Mr Rajendran was employed by Sealand Petroleum and that this was to meet an industrial experience requirement of the HND course. It further appears that from 17 November 1986 until 16 October 1987, the appellant was employed at Fidelity Radio Limited, working 39 hours per week. He earned @123 per week (@90 after tax). The appellant said that at Fidelity he was a trainee test engineer. He thought that this was part of his course. He had not mentioned it to the Interviewing Officer in 1987 because he had not been asked about it. The employment had been arranged independently and not through his College. He said that to get the Electrical Engineering qualification, he needed to work a year or two. The Council of Engineering would accept training with Fidelity for one year. Following the appellant's application in October 1984, the Home Office on 10 April 1985, wrote to Southall College enquiring about the appellant's attendance. The College replied on 9 May 1985, indicating that the attendance was not good. The appellant then submitted two bank statements but no further action was taken by the Home Office until 19 February 1986. The Home Office then wrote to the appellant, enquiring if he was still studying and asking him to forward evidence of study and funds. The Home Office then made some abortive enquiries of the South Bank Polytechnic and it was at this point that the appellant was interviewed. At the interview, the appellant was asked to submit an up to date College letter and evidence of funds, and reminders were sent on 14 April 1987 and 1 June 1987. On 26 June 1987, the appellant submitted a letter from South Bank Polytechnic and a letter stating that his brother was "willing to support me until I've finished my studies". On further enquiry, the appellant's brother stated (in a letter dated 9 July 1987) that he would be responsible for expenses incurred by the appellant during his course of studies. By letter of 10 August 1987, the Home Office asked for actual evidence of funds available "which may be in the form of recent bank statements or savings books". In answer, the appellant said that he was unable to produce a bank statement because his brother paid the College fees and gave him his expenditure in cash. On 23 September 1987 the Secretary of State refused the appellant's application in the following terms: "You have applied for leave to remain in the United Kingdom as a student but you have failed, within a reasonable time, to produce evidence of funds available to you as required in accordance with the Rules". On 16 November 1987, the Secretary of State wrote to the appellant, stating that the reasons for the decision as previously conveyed "are not wholly applicable in your circumstances". The letter continued: The Secretary of State therefore informs you that the reasons why he decided to refuse your application for leave to remain in the United Kingdom as a student are: "You have applied for further leave to remain in the United Kingdom as a student but you have failed, within a reasonable time, to produce evidence of funds available to you as required in accordance with the Rules. Furthermore, you have undertaken full-time employment with Fidelity Radio Limited, at a time when your leave to remain in the United Kingdom was subject to a condition requiring you to obtain permission to take employment and you have no such permission. The Secretary of State is therefore not satisfied that you have complied with the conditions attached to your leave. Furthermore, the Secretary of State is not satisfied that you intend to leave the United Kingdom on completion of your studies." The Adjudicator's approach The adjudicator reviewed the evidence in some detail and considered that the training with Fidelity Radio could not be linked to the appellant's studies. The adjudicator rejected the argument that the Home Office were confined in its reasons for refusal to the non-production of funds. The adjudicator held that at the date of decision, the appellant, although a student, had not given regular attendance and therefore failed to meet one of the mandatory requirements for leave to remain as a student. Further, even if the mandatory requirements were met, the fact that the appellant had been working full-time was a justified ground for refusal of leave to remain. As to the failure to produce evidence of funds, the adjudicator pointed out that the refusal had continued for a considerable period and that in fact, it appeared that during that period, the appellant was being funded by his own earnings. The adjudicator concluded: "On all the evidence before me I certainly do not regard the appellant as having remained here for some time now genuinely to pursue studies here. That he may have given up his employment and begun studying full time again once his application had been refused, carries little weight in showing that at the time of decision he was here genuinely as a student. I am also not on a balance of probabilities, satisfied on this evidence that the appellant intends to leave the UK on completion of his studies. He appears to be seeking to spin out his time here by enrolling on courses of study. I consider the Secretary of State exercised his discretion correctly. I would exercise it in the same way. I dismiss this appeal." The appeal to the Tribunal The grounds of appeal (not drafted by Mr Warr) raised a number of legal issues. Mr Warr addressed us on some of these issues, on additional legal issues and on the merits. The legal issues which we must decide before considering the merits are: i whether the appellant could be in breach of the condition against employment during leave which he had by virtue of the Variation of Leave Order 1976; ii whether the Secretary of State could rely on the breach of conditions of leave as a reason for refusal in the light of the wording of the letter of 16 November 1987, purporting to substitute reasons for the refusal in relation to the decision of 23 September 1987; iii whether, in the circumstances of the case, it was for the Secretary of State to seek out evidence of financial support for the appellant or for the appellant to provide it; iv whether the evidence relating to the employment or training with Fidelity Radio could be admitted or was post-decision evidence to be excluded; v the effect, if any, of the delay in considering the application; vi the effect, if any, of the status of the appellant as a student or a "would-be" student; vii the relationship between the failure to produce evidence as to a claim to remain and compliance with the requirements of the rule upon which leave to remain is dependent. Could the appellant be in breach of conditions of his leave? Mr Warr argued that the appellant could not be in breach of conditions of his leave when he took employment as at that time, the leave by which he remained in this country was that conferred on him in accordance with the Variation of Leave Order 1976. It is true that when the appellant was employed by Fidelity Radio, the leave last granted to him had expired and therefore any leave which he then had was based on the Variation of Leave Order. The relevant article of that Order is article 3(1). This reads: "3(1) Where a person has leave to enter or remain in the United Kingdom for a limited period and applies to the Secretary of State before the expiry of that period for such limited leave to be varied, then, except in a case falling within paragraph (2) below, the duration of his leave shall, by virtue of this Order, be extended until the expiration of the twenty-eighth day after the date of the decision on the application." Mr Warr sought to argue that the effect of that article was simply to extend the duration of the appellant's leave without applying the conditions attached to it. He contrasted the wording of article 3 with that of section 3(3)(b) of the Immigration Act 1971, conferring the power on an Immigration Officer to apply "the limitation on and any conditions" attached to an earlier leave to a subsequent leave. However, as Mr Wilmott pointed out, the matter is settled for this Tribunal by the case of Shaukat Ali v Chief Adjudication Officer, a Court of Appeal decision given on 17 December 1985. In that case, which concerned an appeal from a Society Security Commissioner, the Court rejected the very argument which Mr Warr is putting to us. Lord Donaldson followed the principle of R v Home Secretary ex parte Lapinid [1984] Imm AR 101, and also pointed out that if the leave granted by the Order did not have attached to it the conditions of the earlier leave, it would not be an extension of the duration of the earlier leave. In Lord Donaldson's opinion (and, if we may say so, in ours), that is clearly the effect of the Order. It follows, therefore, that the leave by which the appellant was in this country as from 31 October 1984 until 1987 was an extension of the leave conferred on him on 30 October 1983. That leave was subject to a condition restricting employment and therefore, if the appellant did engage in employment, he acted in breach of this condition. The effect of the "amendment" of the notice of refusal Mr Warr complained that the letter of 16 November 1987 was simply inaccurate. It stated that an event had happened which, in fact, had not happened. The letter stated that the reasons why the Secretary of State decided to refuse the application for leave to remain were first, the failure to produce evidence and secondly, the fact that the appellant had undertaken full-time employment with Fidelity Radio. Clearly, as Mr Warr said, the second reason was not one on which the Secretary of State had taken his decision on 23 September 1987. However, the alleged employment had commenced on 17 November 1986 and the appellant was indeed still employed at the date of decision. So it cannot be said that the Secretary of State was seeking to relate his decision on 23 September to an event which did not happen until after that decision. We take Mr Warr's point that the letter is somewhat inelegantly drafted, but taking the matter at its most favourable to the appellant, the Secretary of State in effect was simply amending the grounds of refusal. It is possible to read the letter as indeed overriding the earlier notice of refusal so that the appellant's leave was extended until 28 days after the later letter. However, nothing turns on that in this case and we read the letter either as an amendment to the earlier decision or as a new decision incorporating the earlier decision. Any lack of opportunity to respond to the assertion of unauthorised employment was cured by the appeal process. It was argued in the grounds of appeal that it was not open to the Secretary of State to amend the ground of refusal during the appeal process (citing the decision of the Court of Appeal in Dagdalen v Secretary of State for the Home Department [1988] Imm AR 425). In that case, the Court rejected a contention that section 18(2) of the Immigration Act 1971 prevented an Immigration Officer from amending the reasons for refusal of leave to enter. Section 18(2) reads: "18(2) For the purpose of any proceedings under this part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken" The "Proceedings" referred to in the subsection are the statutory appeals to adjudicators or Tribunal. Stocker LJ accepted the submissions from Counsel for the Secretary of State that "It is implicit that if the notice given is conclusive for appellate reasons only by virtue of subsection (2), such a notice is not conclusive for any other purpose, including the purpose of considering the validity of various notices". In Nadeem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98, the Court of Appeal approved of the principles set out in R v IAT ex parte Hubbard [1985] Imm AR 110. Those principles recognised that the appellate authorities are not confined in their consideration of a case to the ground of the refusal. It is for them to decide whether, on the facts as established before them, the decision was in accordance with the law and the immigration rules or whether a discretion exercised by the Secretary of State should have been exercised differently. In considering the arguments, the Court specifically approved of the view of Woolf J on the effect of section 18(2) ie that its purpose "is to avoid any dispute as to the basis of the Secretary of State's decision. It does not affect the scope of appeals from the decision". Putting these two decisions together, it seems to us that whatever the effect of section 18(2) on the particular decision taken, it must always be open to the Secretary of State to put forward different grounds justifying a decision taken other than those on which it was taken. Further, even though those grounds had not been considered by the Secretary of State, it follows from the decision in Nadeem Tahir that there is no necessary obligation to refer the matter back for further consideration. However, it must be said that whether or not the matter is referred back would depend upon the circumstances of the case. In this case, however, if we approach it on the basis of the scope of matters to be considered on the appeal, the Secretary of State has already considered the question of unauthorised employment and it is therefore clearly open to the appellate authorities to consider that matter and indeed, in substance, to review the Secretary of State's decision on it. Further, we think that bearing in mind the decisions of Dagdalen and Nadeem Tahir, the effect of section 18(2) must be limited to a prohibition in appellate proceedings on the questioning of the terms of any particular notice of decision. In other words, if there had been no amending notice in this case, it would not have been open to either party to contend that the decision taken on 23 September was taken on grounds other than those specified in the notice of that date. However, this prohibition does not affect the ability of the Secretary of State to raise grounds other than those specified in the notice before the appellate authorities. Further, it does not seem to us that the Dagdalen case has the effect that the appellate authorities cannot consider an amended notice. It simply means that it cannot be contended that in relation to any particular notice, the grounds on which the decision was taken were other than those specified in that notice. So in this case, it is open to the Secretary of State to rely on the amended notice (for that is the effect of the letter of 16 November 1987). The only arguable points remaining go to the date of decision, and the effect on the appellant's leave. It seems to us that if the decision of 16 November 1987 took over from the earlier decision, it would also have the effect of extending the leave of the appellant under the Variation of Leave Order. However, as we say, this is not at issue in this case. A further argument connected with this point was made in the grounds of appeal ie that "the purported right of an appeal granted to the appellant on the amended refusal notice dated 16 November was subject to the objection of appeals ad infinitum as set out by the Court of Appeal in R v Immigration Appeal Tribunal ex parte Subramaniam [1976] Imm AR 155". In that case, as is well known, the Court of Appeal was construing the meaning of section 14(1) of the Immigration Act 1971 in relation to a right of appeal against a refusal to vary leave to remain. In considering the construction of section 14(1), the Court took into account that a person could not be made to leave the country while an appeal was pending. Lord Denning pointed out that in the light of the prohibition against removal, an applicant could extend his stay here by constantly applying and constantly appealing. The Court therefore construed section 14 so as to give a right of appeal only if the application was made during the currency of limited leave. First, it has to be said that the letter of 16 November 1987 does not grant a right of appeal but purports to link the amended decision to the appeal already lodged. It is only if the letter is read favourably to the applicant as being a "new" decision and thereby, extending his leave that the point even arises. Assuming that the point does arise, the circumstances are entirely distinguishable from those envisaged in Subramaniam. In this case there is only one application and any extension of appeal rights can only come through an extension of leave. That is, under the immigration control structure, a matter for the Secretary of State. The letter of 16 November, therefore, either had no effect upon the appeal rights of the appellant (these being established by the decision of 23 September) or, in our view, preferably, operates to extend the leave of the appellant and thereby, to confer appeal rights on him. For these reasons, the remarks in Subramaniam seem to us to have no application to a case such as the present. The responsibility to produce evidence It seems to us clear that the responsibility to produce the evidence in support of the appellant's case, lies on the appellant. Mr Warr sought to argue that once the appellant had asserted that he was supported by his brother and that his brother had confirmed this, it was for the Secretary of State to make further enquiries. Where the obligation falls in respect of any particular piece of evidence, will depend on the circumstances of the case. In this case, it is clear to us that the appellant was asked in 1987 to provide evidence of a specific kind ie actual evidence of funds available to him in the form of recent bank statements or savings books. Although he had provided some evidence of that kind in 1985, he consistently failed to provide any at the time when he knew the decision was under active consideration. On the facts of the case, in our view, the appellant was under an obligation to provide the evidence requested. The evidence relating to Fidelity Radio In the grounds of appeal, it is contended that the adjudicator erred in law in admitting evidence relating to the appellant's employment with Fidelity Radio as the letter confirming this to the Secretary of State was post-dated the decision under appeal. In our view, there is nothing in this point. First, it is arguable that the date of decision was 16 November 1987. Secondly and substantively, whatever the date, the employment or training took place before the date of decision. The effect of delay Mr Warr argued that where the Secretary of State was guilty of delay, it was not open to him to complain of delay on the part of the appellant. However, the effect of delay by the Secretary of State in this case was simply to extend the appellant's leave to remain and this could well work to the appellant's advantage. Any delay in reaching the decision does not affect the validity of that decision, although in a particular case, it may be grounds for asserting unfairness. In considering any question of unfairness, not only would the effect on the appellant of the delay have to be taken into account, but also the appellant's own actions in endeavouring to obtain a decision. In this case, there is no trace of unfairness. As to the effect of the delay in making the decision on the delay of the appellant in producing documents, the appellant was asked time and again to produce the required evidence and indeed, the failure to produce the evidence in part, contributed to the delay. We do not think that the appellant can use any delay there was on the part of the Secretary of State as an excuse for the non-production of the evidence which was required. The relevance (if any) of the "would-be" student Mr Warr raised this question in rather general terms through reference to the Tribunal decision in Karunarajah (6367). In that case, the Tribunal was concerned with the question of the rules applicable to a case where a person admitted as a student had ceased to be a student and wished to resume studies. The Tribunal held that in such a case, the applicable rules were those set out in HC 169 paragraph 24 applied through paragraph 100. However, in this case, the appellant applied as a student for leave to remain as a student. On the facts, he was never a "would-be" student and therefore, Karunarajah has no application. In any event, even if it did, the two grounds of refusal would still apply -- these being the application of HC 169 paragraphs 98 and 99 as they are set out in HC 503. We say in passing, that it may well be that the rules applicable to this case are those set out in HC 169 paragraphs 97 and 98 prior to amendment by HC 503, but the substantive issues are the same whichever rules are applicable. The relationship of the requirements as to evidence and the substantive application Together with his grounds of appeal against the decision taken on 23 September 1987 based entirely on the lack of production of evidence, the appellant included (at last) a statement of the account of his brother. In the light of this, it is recorded in the explanatory statement, the Secretary of State gave further consideration to the case and it was at this point that the employment (or training) of Fidelity Radio came to light. A refusal on the ground of delay of production of evidence would remain justified even if the required evidence was produced at an appeal hearing. However, the production of the evidence would no doubt be taken into account as a factor in the review of the decision. If, on appeal, as matters then stood, the ground of refusal was no longer justified, the sole result would be that the substantive requirements of the rule would become the central features of the case. The case might have to be remitted for consideration or if, on the evidence, mandatory requirements were not met, the appeal would nevertheless have to be dismissed. In the present case, there is a ground of refusal other than unreasonable delay but were we to be in favour of the appellant on both grounds, we still would have to consider whether the requirements of the rule (ie paragraph 107) were met. The merits In approaching the merits, we note that the adjudicator did not find the appellant a credible witness. In our view, there is very little merit in the appellant's case. Insofar as the evidence is concerned, it seems to us that the appellant knew perfectly well what was required and simply did not comply. Further, as it turned out, his case that he was supported by his brother was wrong in fact for, at the time of the decision he was employed by Fidelity Radio. No doubt he supported (or largely supported) himself. As to his arrangements with Fidelity Radio, we had before us a further piece of evidence -- a letter from Mr Adrian Chadburn, a lecturer at Southall College. In the grounds of appeal, it was said that the appellant would adduce further oral testimony on this aspect of the case but Mr Warr told us that he did not wish to call the appellant. Mr Chadburn said in his letter that there had been difficulties in the late 1970s in obtaining firms who would provide the required industrial experience for those who needed it for the purpose of courses. This was why the appellant had been employed at Sealand Petroleum as part of his HND course. Mr Chadburn said that it could be understood why the appellant wished to obtain a period of employment at Fidelity Radio even at an elementary level. If the appellant had approached Southall College, he would have been given a letter for the Home Office or Department of Employment. However, during the time of his employment, the appellant was enrolled for two part-time courses -- one at South Bank Polytechnic (for the course leading to examinations of the Engineering Council) and one at the London School of Business and Computing (a course leading to a certificate in Applications Programming). There is not the slightest evidence that the arrangements at Fidelity Radio were part of either of these courses. Indeed, in his evidence before the adjudicator, he said he could not attend the courses every day because of his employment and that he could not "get day release from his employer". We agree with the adjudicator's view that the work at Fidelity Radio was not linked with the appellant's studies so as to make it part of his training. In our view, the Secretary of State was justified in refusing the appellant leave to remain on the ground that he had acted in breach of conditions of his leave. Finally, as Mr Wilmott said, even apart from the question of breach of conditions and assuming the appellant had satisfied the requirement of production of evidence, he must also comply with the requirements of HC 169 paragraph 107. One of these requirements is that he is able to maintain himself without working and without recourse to public funds. On the evidence before us, it would be difficult to be so satisfied. We share the adjudicator's view as to these requirements, but we make no further comments as the thrust of the argument before us went to the two grounds of refusal specified in the letter of 16 November 1987. We simply reiterate that even if the appellant had succeeded in persuading us that neither of these grounds was justified, he would still face a considerable number of hurdles in satisfying us that his appeal should be allowed. In the event, we are satisfied that both of the grounds of refusal were justified. The appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Chatwani & Co, Southall for the appellant