Immigration Officer, Gatwick v. Pattuwearachchi

IMMIGRATION OFFICER, GATWICK v PATTUWEARACHCHI

Immigration Appeal Tribunal

[1991] Imm AR 341

Hearing Date: 22 January 1991

22 January 1991

Index Terms:

Student -- prospective student -- entry clearance granted for appellant to attend selection interview for nursing course -- admission to course would depend inter alia on appellant's command of English -- immigration officer not satisfied as to appellant's linguistic competence -- decision on request for leave to enter deferred -- grant of temporary admission -- appellant not admitted to course because of inadequate command of English -- proposed to take English language course and re-apply for nursing course -- whether subsequent refusal of leave to enter justified -- whether it was implicit in grant of entry clearance to a prospective student that he leave the United Kingdom as soon as it became apparent he could not pursue immediately his intended course -- whether where a decision to grant or refuse leave to enter was deferred and meanwhile the immediate purpose of entering the United Kingdom had been achieved, the satisfaction of that objective rendered the entry clearance ineffective -- whether it was for the immigration officer to determine the consequences of a change in the pattern of studies -- whether in the case of a prospective student some issues were more properly the concern of the Secretary of State on a subsequent application for variation of leave as a student. HC 388 paras 17, 28, 30.

Held:

The immigration officer appealed to the Tribunal against the determination of an adjudicator in which she had allowed the appeal of a citizen of Sri Lanka who had been refused leave to enter, after he had arrived in the United Kingdom with entry clearance granted to him as a prospective student. The respondent had intended to follow a nursing course: he sought entry clearance to attend the interview. Acceptance on the course dependent inter alia on the applicant having a good command of English. The immigration officer who interviewed him on his arrival in the United Kingdom considered that the respondent's knowledge of English would be inadequate for him to be accepted on the course. The respondent was granted temporary admission: during that time he was rejected for the course because of his poor command of English. He therefore decided to take an English language course and re-apply for the nursing course after completing that course. On the nursing course he would have received wages and free accommodation: those benefits he of course would not enjoy while studying English. When those facts became known to the immigration officer the respondent was refused leave to enter, it being considered that through changes in circumstances, the visa had been rendered ineffective. The adjudicator allowed the appeal, holding that the respondent still intended to pursue the nursing course. The Tribunal considered the proper limits to be observed by an immigration officer in assessing the position of a prospective student as distinct from factors that would properly be taken into account by the Home Office in the subsequent application for variation of leave as a student, as envisaged in the rules. Held: 1. It was wrong for the entry clearance to be held to be ineffective merely because, through the delays in determining the application for leave to enter, the immediate purpose of seeking leave to enter (ie attending the interview for the nursing course) had been achieved. 2. In the case of a prospective student, it was rather for the Home Office, on the subsequent application for variation of leave to remain as a student, to determine the relevance and merit of a particular course in the context of the student's anticipated studies. 3. Likewise, it would be for the Home Office in that application to be satisfied that the requirements of support and accommodation were met.

Counsel:

AD Clayton for the appellant; TE Gooneratne for the respondent PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, ML James Esq

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The immigration officer, Gatwick, appeals against the decision of an adjudicator (Mrs PA Symons JP) allowing the appeal of Vajira Dayaseela Pattuwearachchi against the refusal of leave to enter. The story in this case starts with an application by the respondent in Colombo on 15 August 1989 for entry clearance in connection with an application he had made to joint a course at the Mid-Essex School of Nursing. Admission to the course was dependent upon success at an interview. A salary was paid to students on the course of some @5,150 per annum and accommodation was made available. He said he had always wanted to be a nurse. He said that if he failed the interview he would start a Business Management course, and then followed it up by saying that he would come back to Sri Lanka and start a shop. He added that he had spent the last two years studying. There was a nursing school in Sri Lanka but the situation there was not good. In answer to a query as to whether he had any relatives in the United Kingdom, he replied "No". The respondent arrived at Heathrow on 21 September 1989. He was interviewed in English on that day but subsequent interviews were conducted in his mother tongue, Sinhalese. The immigration officer who examined the respondent on the day of arrival ascertained that the earliest an appointment could be arranged for his course interview was 27 September 1989 and he was told that applicants were expected to show that they had a good command of English. The immigration officer apparently doubted the respondent's command of English and served him with form IS 81, requiring the respondent to attend for further examination. Enquiries were put in train of his application in Colombo and pending the reply of the visa officer, the respondent was granted temporary admission until 29 September 1989. On that day the Mid-Essex School of Nursing stated that the respondent had been refused a place because of his poor standard of English. As no reply had been received from the visa officer in Colombo, the respondent's temporary admission was extended first to 6 October and then to 29 October. On 29 October the respondent was re-interviewed, the immigration officer then interviewing him having a copy of the visa application form and notes of the interview in Colombo. The respondent told the immigration officer that he had enrolled at the Mayfair School of English as he had been told by the Mid-Essex School of Nursing that he could attend a further interview in eight months time. When asked about this course of action in the context of his replies to the visa officer, he said that at that time he did not think that he would fail his interview. He said that he could not remember his replies. The respondent also qualified his statement to the visa officer that he had spent the two years preceding his application studying English in individual classes, but said that he had studied at classes held in a college in Colombo for eight months. The immigration officer then concluded that a change in circumstances had removed the basis of the respondent's claim to admission. The notice of refusal reads: "You hold a current entry clearance but I am satisfied that a change of circumstances since it was issued has removed the basis of your claim to admission. You initially asked for leave to enter the United Kingdom in order to follow a course in nursing at Mid-Essex School of Nursing and subsequently you have sought leave to enter to follow a course of English, but I am satisfied that a change in circumstances since the entry clearance was issued has removed the basis of your claim to admission". The refusal of leave to enter followed as the visa was ineffective and the respondent a visa national. Before the adjudicator, it appears that the presenting officer took a new point ie that as the respondent was seeking leave to enter to study English, the issues of accommodation and maintenance took on a new light and a new importance. As these issues would have been irrelevant if the application had continued to undertaken nursing training, this also constituted a change in circumstances since the issue of the visa. The respondent gave evidence before the adjudicator, and the adjudicator reviewed that and the history of the case in some detail in her determination. The adjudicator rightly categorised the application by the respondent as one falling within HC 388 paragraph 28 ie the then novel category of "prospective student". The adjudicator then commented that it was not open to the immigration officer to refuse entry on the grounds that the respondent did not have due command of English in respect of his prospective student entry clearance. The immigration officer's powers extended to those matters set out in paragraph 17 of HC 338 ie as to whether the visa was rendered ineffective. The adjudicator accepted that the critical date as to whether there had been a change of circumstances was the date of the refusal of leave to enter and not the date of arrival. By that date the respondent had been rejected by the nursing school. The adjudicator continued: ". . . This clearly constitutes a change of circumstances and must have an effect on his 'realistic' intention to study nursing here. What I do not accept is that this change of circumstances, which took place after the appellant arrived here and was given temporary admission, was such a change as to remove the basis of his claim to admission as a 'prospective' student. A 'prospective' student who already holds a visa as such, is in a new category of applicant created by the new Immigration Rules HC 388. Such a 'prospective' student is eligible for entry without having already been accepted at an educational establishment and without having demonstrated his clear ability to be so accepted. He is eligible because he has a 'realistic' intention of being so accepted. The fact that he is in the event not accepted by his chosen educational establishment, does not necessarily as I see it, render his originally accepted realistic intention any the less realistic. There must be many students who have a realistic chance of gaining entry to educational establishments who do not in the event realise their intention. It appears to me that the new rules allow applicants who have a genuine and realistic intention to study here, to gain entry to try and achieve places in their chosen educational establishment. Visa nationals cannot apply at a port of entry, but must apply abroad for entry clearance. They have to satisfy an ECO abroad as to the realism of their intentions. If in the event they fail to obtain an education place, it would appear to be a negation of the purpose of para 28 then to say that the basis of their claim to admission has been removed. They had a claim to admission and what should happen if they fail to obtain an educational place, appears to be a matter for the Home Office. Para 30 of HC 388 states that a passenger who holds a current entry clearance as a prospective student . . . may be admitted for a short period, within the limit of his means, with a prohibition on taking employment and should be advised to apply to the Home Office for further consideration of his case". The adjudicator rejected any contention that the visa was issued on the condition that the respondent left the United Kingdom immediately if he failed this preliminary interview. The immigration officer had however based his decision on his view that the respondent had changed his intention to leave the United Kingdom on that event occurring. The adjudicator was of the view that the rules required an appellant to intend to leave the United Kingdom at the end of his studies and an intention to leave if there was a failure at an initial interview had no place in the rule. Finally, the adjudicator held that the respondent's change of course by the time the decision was made should not, of itself, constitute a change of circumstances contemplated in the rule. The English course had been undertaken to help the respondent overcome "the one hurdle he had encountered in his quest for admission to a nursing course". This was not a case of changing to a subject unrelated to that in respect of which a visa had been granted. As to the second branch of this argument ie that the accommodation and maintenance issues became relevant because of the change of course, the adjudicator held that the immigration officer had not satisfied the burden upon him of showing that there had been a change of circumstances of this nature -- there was no evidence on the point. Before us Mr Clayton argued first, that the English course was in immigration terms radically different to the nursing course. The entry clearance officer was not given the opportunity to consider the alternative studies and therefore a different factual situation was presented to the immigration officer than that presented to the entry clearance officer. Secondly, Mr Clayton drew our attention to two aspects of the respondent's evidence which, argued Mr Clayton, showed that the respondent was not being fully frank with the entry clearance officer. First, in cross-examination before the adjudicator, the following questions and answers occurred: "Q. Were you really going back to Sri Lanka if you failed to get into school? I did tell the ECO in Sri Lanka that. I can't remember telling IO here. Q. Repeats question. I can't say had that in my mind. I told ECO that, but I can't say I contemplated it -- I had no such intention". Secondly, the respondent had said that he had no relatives in the United Kingdom but a cousin of his had given evidence. Mr Gooneratne provided us with written grounds of argument and elaborated on them orally. In sum, Mr Gooneratne argued first that it was dubious in law for the immigration officer to postpone taking a decision when he had adequate evidence to decide the issue. Secondly, the immigration officer was not justified in enquiring into the respondent's standard of English and thirdly, that the delaying of the decision artificially created the change of circumstance on which reliance was now placed. Finally, it was not justifiable to introduce the element of maintenance and accommodation for, contended Mr Gooneratne, the visa officer must have been satisfied as to the ability of the respondent to find accommodation and to be maintained even if he failed the English test for the nursing course. Conclusions We agree with the adjudicator's categorisation of this case as an application for leave to enter by a prospective student. Therein lies the key, for again we agree with the adjudicator that if the practice followed in this case was to be adopted, it would be, at the very least, inconsistent with the underlying purpose of the prospective student category where the applicant had to undergo some test or interview to qualify for the course which he had realistic intentions of undertaking. As Mr Gooneratne said, this is not a case in which the immigration officer is presented with a different picture to that presented to the entry clearance officer. If a prospective student entry clearance is to mean anything then it must be that on presentation, an immigration officer is not entitled to declare there has been a change of circumstance simply because the purpose of the entry clearance has been carried out. It does seem to us that in all probability, the delay in consideration of the issue in this case was created by the immigration officer not being satisfied as to the standard of English required for undertaking the nursing course. However, although that was material matter for the visa officer, it was also a matter which obviously was going to lie at the heart of the entrance interview which in turn formed the purpose for the issuing of the visa. Through the immigration officer straying into territory which, in the context of this case was not open to him, the delay occurred which in turn meant that the decision on the visa was taken after the purpose of the visa had been achieved. In our view, to declare the visa ineffective because of the failure to obtain a place on the nursing course was, in substance, to declare ineffective the visa because the purpose for which it had been issued had been achieved. As the adjudicator said, paragraph 30 of HC 388 indicates the purpose of the prospective student visa ie that a person holding such a visa should be admitted for a short period and then advised to apply to the Home Office for further consideration of his case. It would then have been a matter for the Home Office as to whether the prospective student visa could be translated into student leave given the whole circumstances of the case. It may well be that in general terms satisfaction of the purpose for which a visa is issued before a decision on the application for leave to enter can constitute a change of circumstances, making the visa ineffective. However, the consequences of the visa being declared ineffective are serious for, subject to appeal and judicial review, the applicant is liable to removal and, in any event, there would be a stamp in the passport recording what has occurred. It may be therefore that delay in reaching a decision until after the purpose of the visa has been achieved is open to a challenge on grounds of fairness. The justification for any delay and any issue of fairness will depend upon the circumstances of each case. In this case we are concerned with a visa which, by definition, contemplates not only admission for a purpose to be achieved within a limited time but with the aim of obtaining an extension of the limited leave in order to study. Inherent in it, therefore, is that the visa contemplates an essentially preliminary or trial stage of stay in this country. The effectiveness of the visa is to be adjudged with that firmly in mind and consideration always given to whether the success or otherwise of the trial period is a matter not to be dealt with through the visa but through any application for leave to remain following the short period of leave appropriate to the purpose of the visa. As the adjudicator implies, subject to the consideration of appropriateness and fairness, such a visa may be declared ineffective if granted specifically for the purpose of successful admission to a particular course, and by the date of decision it is apparent that that cannot be achieved. However, where a prospective student visa is issued for the purpose, in substance, of giving the applicant the opportunity of obtaining entry to a particular course and at the date of decision that remains his goal, it is difficult to see how circumstances have changed so as to remove the claim to admission. As we say, matters relevant to the application to remain as a student should not be confused with eligibility to enter as a prospective student. Apart from the question of fairness therefore, the issue is whether, at the date of the decision, the circumstances had changed in respect of the application as a prospective student so as to remove the claim to admission -- bearing in mind that the admission is for a short period. In this case, the interview by the nursing school had revealed that a greater command of English was required for the course at the school. As the adjudicator said, the respondent remained a prospective student in respect of the nursing course. In effect, therefore, the ground of admission was maintained -- though the method of achieving this had to change. In the new circumstances, the respondent would have to become a student of a different course -- but whether he should be granted leave to study is precisely the type of issue to be faced at the end of the short period of leave as a prospective student. As to the matters relied on on behalf of the immigration officer, those going to maintenance and accommodation have, in our view, nothing to do with the prospective student application. Any change went to the leave to remain as a student -- for the comparison drawn was between the English course now to be undertaken to achieve the ultimate aim and the course at which the respondent aimed and still aims. These are matters to be assessed at the application for leave to remain. As to the respondent's statements to the entry clearance officer concerning his intention to return to Sri Lanka if he failed the interview, in the context of the prospective student visa, these are to be weighed as a factor in assessing whether the claim to admission has been removed. The visa was not issued for the purpose of attending only a successful interview and it is strongly arguable that any such condition would be attempting to make the validity of the entry dependent on whether the purpose of it was achieved. The success or not of the interview is another factor appropriate to the application for leave to remain as a student rather than to enter as a prospective student. For the same reason, any undertaking to return if the interview failed goes more to an application to remain and not for entry. We are not satisfied that the statements of the respondent as to his studies of English or existence of relatives in this country are of such relevance to the prospective student visa as to remove the claim to admission. Finally, as to the assertion that the respondent deceived the entry clearance officer as to his intention to return at the end of his studies, the evidence comes solely from the responses in cross-examination which we have set out. While it is possible to read the response in that way, in its context it is also far from clear and certainly not sufficiently precise for any allegation of deceit to be made out. Further, before the adjudicator the presenting officer withdrew any reliance on false representations and, in these circumstances, this adds to the difficulty of relying on responses such as were given as a basis of any allegation of deceit. The adjudicator accepted the respondent's evidence that he really did not envisage failing the interview and therefore, the adjudicator placed little reliance on the answers given by the respondent to the entry clearance officer as to his intentions. The adjudicator was entitled to take this view, having seen the respondent and we see no reason to disagree with it. The appeal is dismissed. As will be apparent, we agree with the adjudicator's approach and we further agree that the respondent should be granted leave to enter the United Kingdom for a short period pursuant to his entry clearance. We vary the directions of the adjudicator only to stress that as with the matter of duration, the question of conditions (if any) to be attached to the leave is a matter for the immigration officer.

DISPOSITION:

Appeal dismissed.