R v. Immigration Appeal Tribunal, Ex parte Alexander

R v Immigration Appeal Tribunal, ex parte Alexander

COURT OF APPEAL, CIVIL DIVISION

[1982] 1 All ER 763, [1982] 1 WLR 430, [1981] Imm AR 175

Hearing Date: 28 OCTOBER 1981

28 OCTOBER 1981

Index Terms:

Immigration -- Leave to enter -- Non-patrial -- Student -- Requirements for entry -- Applicant producing evidence of genuine intention to study in United Kingdom -- Applicant unable to satisfy immigration officer of intention to leave United Kingdom on completion of course -- Immigration officer refusing leave to enter -- Whether necessity to satisfy immigration officer of intention to leave country on completion of course a 'requirement' for or prohibition on entry -- Whether applicant not satisfying 'requirements' for entry -- Whether immigration officer having discretion to admit student for short period despite failure to show intention to leave country on completion of course -- Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79), paras 19, 21.

Held:

The applicant obtained an entry certificate in Sri Lanka to enter the United Kingdom as a student but on her arrival in England the certificate was found to be invalid. The applicant therefore applied to the immigration officer for leave to enter the country as a student, in order to take a three-year course in marketing. Although she satisfied the immigration officer that she had paid the first year's fees for the course and had @500 in cash he refused her leave to enter, on the ground that she had not satisfied the requirements of either para 18 a of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79), namely that she was able to meet the full cost of the course and her own maintenance during the course, or para 19 b of those rules, namely that she was able to satisfy the immigration officer that she intended to leave the country on completion of the course. The applicant appealed to an adjudicator, who allowed the appeal and directed that she should be admitted as a student for a short period, within the limit of her means, under para 21 c of the immigration rules. The immigration officer appealed to the Immigration Appeal Tribunal, which held that he had properly refused the applicant leave to enter. The applicant applied to the Divisional Court for an order of certiorari to quash the tribunal's determination on the grounds that the tribunal had erred in law in failing to take into consideration the discretion under para 21 to admit for a short period a student who satisfied the immigration officer that he or she had a genuine and realistic intention of studying but who was unable to satisfy the 'requirements' for the issue of an entry certificate, including the requirement in para 19 of satisfying the immigration officer that he or she intended to leave at the end of his or her course. The Divisional Court granted the application on the ground that, even though a student could not satisfy the immigration officer that he or she intended to leave the country on completion of a course of study, the immigration officer nevertheless had a general discretion under para 21 to admit the student for a short period within the limit of his or her means. The appeal tribunal appealed. a Paragraph 18, so far as material, is set out at p 766 d, post b Paragraph 19, so far as material, is set out at p 766 e, post c Paragraph 21, so far as material, is set out at p 766 h, post Held (Oliver LJ dissenting) -- The appeal would be allowed for the following reasons -- (1) (Per Lord Denning MR) The prohibition contained in para 19 of the immigration rules prohibiting the entry into the United Kingdom of a student who could not satisfy the immigration officer that he intended to leave on completion of his studies was imperative and overrode the discretion in para 21 to admit a student for a short period if he had a genuine intention of studying in the United Kingdom but could not satisfy the requirements for the issue of an entry certificate. Accordingly, where a student could not satisfy the immigration officer that he or she intended to leave the country on completion of a course of study, the immigration officer was required by para 19 to refuse leave to enter and was not entitled to exercise his discretion under para 21 to admit the student for a short period. It followed that since the applicant had not satisfied the immigration officer that she intended to leave England on completion of her course, the immigration officer had been right to refuse her leave to enter (see p 767 d to f, post); R v Chief Immigration Officer, Gatwick Airport, ex p Kharrazi [1980] 3 All ER 373 considered. (2) (Per Watkins LJ) Since the stipulation in para 19 that a student had to be refused entry if he could not satisfy the immigration officer that he intended to leave the country on completion of his course was a prohibition on entry, rather than a 'requirement' for the issue of an entry certificate, the immigration officer's discretion under para 21 to dispense with compliance with the 'requirements' for the issue of an entry certificate did not extend to waiving the prohibition on entry of a person who could not satisfy him that he intended to leave the country on completion of his course.Since the immigration officer had not been satisfied that the applicant intended to leave the country on the completion of her studies, he had properly refused her leave to enter (see p 769 j to p 770 b and f to j, post).

Notes:

For the entry of non-patrial students, see 4 Halsbury's Laws (4th edn) para 984.

Cases referred to in the Judgment:

R v Chief Immigration Officer, Gatwick Airport ex p Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 396, CA.

Introduction:

Appeal. Miss Kamalawathie Alexander applied, with the leave of the Divisional Court granted on 12 July 1979, for judicial review by way of an order of certiorari to quash the determination of the Immigration Appeal Tribunal dated 16 November 1979, allowing the appeal of the Secretary of State for the Home Department against the decision of an adjudicator made on 9 October 1978 allowing the applicant's appeal from the immigration officer's refusal of leave to enter the United Kingdom and directing that the applicant should be admitted to the United Kingdom as a student for a short period within the limit of her means, under para 21 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79). The grounds of the application were that the appeal tribunal erred in law (1) in holding that for a student to obtain admission to the United Kingdom he had to show (a) that he could meet the cost of his course of study and/or (b) that he could satisfy the immigration officer that he intended to leave the country on completion of the course, and (2) in failing to take into consideration the second sentence of para 21 of the immigration rules. By a judgment given on 7 November 1980 the Divisional Court (Donaldson LJ and Forbes J) granted the application, quashed the appeal tribunal's determination and referred the case back to the tribunal for reconsideration. The tribunal appealed seeking an order quashing the Divisional Court's judgment on the grounds that the court was wrong in holding that an immigration officer who was not satisfied that an applicant for entry as a student intended to leave the country on completion of his course of study, nevertheless had a discretion under para 21 of the immigration rules to admit him or her for a short period within the limit of his or her means.The facts are set out in the judgment of Lord Denning MR.

Counsel:

Simon D Brown for the appeal tribunal. Michael Beloff QC for the applicant. PANEL: LORD DENNING MR, OLIVER AND WATKINS LJJ.

Judgment One:

LORD DENNING MR. Miss Kamalawathie Alexander was born in Sri Lanka 30 years ago. She arrived at Heathrow Airport on 19 September 1978. She said that she wanted to enter as a student on a three-year course in marketing studies. She gave descriptions of her family background. She had with her an entry certificate endorsed 'student'. If that had been in order, she would have been admitted for entry in the ordinary way. After the immigration officer had questioned her, it turned out (and this is not challenged any more) that she had obtained the entry certificate by concealing information and giving wrong information. So her entry certificate was invalid. It could no longer be relied on to enable her to enter the country. On the other hand, it appeared that she had paid the first year's fees for the course, and that she had @500 in cash. In those circumstances, the immigration officer went on to inquire whether or not she 'intended to leave' the United Kingdom after her studies were completed. He was not satisfied that she did intend to leave, and he was not satisfied that she had sufficient means to keep herself for the duration of the course. So he refused to allow her to enter. He said in his refusal of leave to enter:

'You have asked for leave to enter the United Kingdom in order to follow a course of study in marketing at Modern Training in Management and Salesmanship Ltd., but I am not satisfied that the financial support available will be sufficient for you to meet the cost of the whole course and to maintain yourself, nor that you intend to leave the United Kingdom when your studies are completed. Furthermore, you hold an entry certificate endorsed "Student" but you obtained it by falsely representing to the Issuing Officer that you had no close relatives in the United Kingdom, whereas you have two cousins, one of whom is also financially dependent on your stated sponsor, and this has removed the basis of your claim to enter the United Kingdom.'

On that refusal, Miss Alexander was entitled to appeal to an adjudicator here without going back to Sri Lanka. That is provided for in the statute. She appealed to the adjudicator here. When he considered the matter, he came to a different conclusion about whether she intended to leave at the end of her studies. He said:

'The appellant had not told the Immigration Officer the truth about her family circumstances but I do not consider this by itself to be sufficient to lead to a reasonable inference that she does not intend to leave the United Kingdom at the end of her studies. I was impressed by [her cousin's] evidence and note that the appellant's fees for the first year have been paid and that she arrived here with @500. I am satisfied that funds are available to support the appellant for the first few months of her studies and so allow the appeal and direct that the appellant be admitted as a student for a period within the limit of her means.'

The matter went on appeal to the Immigration Appeal Tribunal. They looked into the matter and took a different view. They said:

'In our view therefore the immigration officer properly refused leave to enter and the adjudicator should not have allowed the appeal.'

They felt that Miss Alexander had not shown that she was going to leave at the end of her studies. They thought that, once here, she might well stay on indefinitely. So she had to go. There was an appeal to the Divisional Court. They allowed the appeal because they thought that there was a general discretion in the immigration officer to admit her, even though she intended to stay. So the Divisional Court directed that the case should go back to the Immigration Appeal Tribunal for reconsideration. There is now an appeal to this court. This case depends on the interpretation of paras 18, 19 and 21 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79). These define the circumstances in which a person coming from overseas as a student can obtain an entry clearance in his own country or, alternatively, on entering this country can obtain leave here on his arrival. Paragraph 18 says:

'... an entry clearance will be granted if the applicant produces evidence which satisfies the officer to whom he applies that he has been accepted for a course of study at a university, a college of education or further education, an independent school or any bona fide private educational institution; that the course will occupy the whole or a substantial part of his time; and that he can meet the cost of the course and of his own maintenance and that of any dependants during the course.'

Paragraph 19 says:

'An applicant is to be refused an entry clearance as a student if the 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...' (Emphasis mine.

Paragraph 21 says:

'A passenger who holds a current entry clearance, or who can satisfy the Immigration Officer that he fulfils all the requirements of the preceding paragraphs, may be admitted for a period of up to 12 months, depending on the length of the course of study and on his means...'

Up to that point it is clear that a passenger who comes here, and satisfies all the requirements of para 18, can be admitted for a period of up to 12 months. But, if he does not satisfy those requirements, he is to be refused an entry clearance under para 19. But the important provision for our consideration today is contained in the words at the end of para 21:

'A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the United Kingdom but cannot satisfy the requirements of the preceding paragraphs may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case.'

The point that arises is this. Supposing the passenger satisfies the immigration officer that he has 'genuine and realistic intentions of studying in the United Kingdom' (para 21) but he does not satisfy him that he intends 'to leave on the completion of his studies' (para 19), what is the position? According to para 19 he is to be refused entry clearance. But it is said that under the last words of para 21 there is still a discretion in the immigration officer to admit for a short period, and that he has a discretion under which he can let him in, even though he does not intend to leave on the completion of his studies. This point was touched on in R v Chief Immigration Officer, Gatwick Airport, ex p Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 1396. We were there dealing with similar paragraphs in the Statement of Changes in Immigration Rules (HC Paper (1979-80) no 394). In it para 24 was the same as our para 21, and para 22 was the same as our para 19. I said ([1980] 3 All ER 373 at 378-379, [1980] 1 WLR 1396 at 1402):

'There is a sentence in para 24 [our para 21] which enables an immigration officer to admit "for a short period" but that is directed to cases where a student comes without sufficient means to carry him through, or without having been actually enrolled for a course of study at a college or school. He can be admitted for a short period so as to enable him to overcome those difficulties.' Waller LJ said ([1980] 3 All ER 373 at 381, [1980] 1 WLR 1396 at 1405):

'In my opinion para 24 [our para 21] does not arise if the applicant has been refused an entry clearance because of either of the bars set out in para 22 [our para 19]. In other words, if the immigration officer is not satisfied that the applicant intends to follow a full-time course and is able to do so, or is not satisfied that the applicant is able and intends to leave the country on completion of the course, he must refuse an entry clearance.'

In making those observations, we certainly intended that a student could not be admitted, even for a short period, unless the immigration officer is satisfied that the applicant intends to leave the United Kingdom when his studies are completed. The words of para 19 are imperative. He is to be 'refused' etc. They take priority over the last words in para 21. Applying that here, it seems to me that the immigration officer was quite right. Under the words of para 19 entry clearance had to be refused because he was not satisfied that Miss Alexander intended to leave the United Kingdom when her studies were completed. It seems to me that the immigration officer acted quite properly in following the words of para 19. The Immigration Appeal Tribunal viewed the matter in the same way. They were quite right. I therefore take a different view from the Divisional Court. I would uphold the decision of the Immigration Appeal Tribunal, and allow the appeal accordingly.

Judgment Two:

WATKINS LJ. A person who seeks to enter this country for the purpose of study comes here, if entry is permitted, for, as the rules state, 'temporary purposes'. That means that the permission granted to that person is to remain here for so long as the course of education lasts. At the termination of that period, no matter how long it be, that person, unless conditions change and the scope of the permission is enlarged, has to return to his country of origin. In order to gain admission he has to overcome a number of hurdles. He has to satisfy the immigration officer of certain requisites, called in one of the rules, 'requirements', and he may also have to remove any doubts which are in the mind of the immigration officer about his bona fides both whether he is a genuine student and whether he has the firm intention, if he be a genuine student, of returning to his country of origin after his period of education is over. In the instant case the applicant, who came here from Sri Lanka, did not qualify for consideration as a genuine student, so the question whether she intended to return after her period of education was over could not be asked until it had been decided whether she had complied with the requirements set out in para 18 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79). She did not conform to those requirements. It was in my judgment, therefore, not necessary for the immigration officer to turn to para 19 and to convince himself that she was, in the language of that rule, a person who was then able to and intending to follow a full-time course of study and further intending to leave this country on completion of it. He could only have regard to such considerations as that provided he was satisfied that she had conformed to the requirements of para 18. In passing I should say that in my view para 18 contains 'requirements' and para 19 contains 'prohibitions'. When a person such as this applicant fails to meet any of the requirements of para 18, she has only one other possible chance of obtaining entry to this country. She had no current entry clearance certificate; she did not fulfil the requirements set out in para 18; so she could only look for that chance to the second part of para 21, and that so far as relevant provides:

'A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the United Kingdom but cannot satisfy the requirements of the preceding paragraphs may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case.'

Parliament had in contemplation, so it seems to me, in enacting that provision a person who for some reason or another, either for example through not being fully acquainted with the conditions of entry or through carelessness in paying regard to them, failed to meet the requirements; and accordingly it was thought unfair that that person should automatically be sent back from whence she came when there existed a possibility that, if she were allowed to remain in this country for a very short while, she could fulfil all the requirements of para 18 and prove not to be prohibited by para 19. Thus the immigration officer was given a discretion to allow that person to remain in this country for a short period for that purpose. But the discretion has to be exercised with careful regard to the express terms of the rule. Plainly the immigration officer has to be satisfied in the exercise of this discretion to allow that person to remain here for a short period that she has a genuine and realistic intention of studying in the United Kingdom. And furthermore, so it seems to me, that that person is a bona fide would-be student who has come here for a temporary purpose genuinely intending to return to her country of origin after the course of education is over, if it is ever undertaken. It is contended that para 19 also contains 'requirements'. I cannot agree. That being so, its provisions are not comprehended by the use of that word in para 21 (now para 24). These two paragraphs, paras 19 and 21, must be given separate consideration by the immigration officer in the exercise of his discretion in my opinion; otherwise he does not exercise it according to law. His duty is, inter alia, in exercising the discretion to satisfy himself that the person seeking leave to enter this country has genuine and realistic intentions of studying here (para 21) and that that person intends to leave the country on completion of the course of study (one of the prohibitions in para 19). In my judgment, although the immigration officer apparently did not address his mind to the exercise of the discretion arising out of the second part of para 21 in quite that way, he did ask himself the vital question, namely: 'Is this person someone who intends to leave the country on completion of the course of education?' and he answered that question in the negative. I take the view, therefore, that he rightly excluded this applicant within the provisions of paras 19 and 21. Accordingly, I agree with the course proposed by Lord Denning MR.

DISSENT By-1: OLIVER LJ.

DISSENT-JDGMT-1:

OLIVER LJ. I have the misfortune to take a different view from that which has just been expressed in the judgment of Lord Denning MR. In my judgment, the Divisional Court was right, and for my part I would dismiss the appeal. The matter falls within a fairly small compass, and it depends entirely on the construction of the rules, and in particular on the last sentence of para 21 of the Statement of Immigration Rules of Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79). This is all under the heading 'Students', and para 21, as Lord Denning MR has said, provides as follows:

'A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the United Kingdom but cannot satisfy the requirements of the preceding paragraphs may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case.'

The question turns on the meaning of the words 'the requirements of the preceding paragraph', and that involves some consideration of the layout of the rules. Paragraph 10 deals with entry clearances, and provides:

'A Commonwealth citizen who wishes to ascertain in advance whether he is eligible for admission to the United Kingdom can apply to the appropriate British representative in the country in which he is living for the issue of an entry certificate. This procedure is of particular value when the claim to admission depends on proof of facts entailing enquiries in this country or overseas.'

I mention that because I think it does have a bearing on the logic of the last sentence of para 21. Entry certificates are dealt with also in para 12:

'Entry certificates are issued in accordance with the rules contained in this statement: they are to be taken as evidence of the holder's eligibility for entry to the United Kingdom, and accordingly accepted as "entry clearances" within the meaning of the Act...'

and there follow provisions as to what is to happen to a passenger who holds an entry certificate. Paragraphs 18 and 19 deal with the conditions for the issue of entry certificates. A person who is seeking entry to study should be admitted if he presents a current entry certificate granted for that purpose: para 18. Then it prescribes the conditions under which he will be entitled to get an entry certificate; that is, if he satisfies the officer that he has been accepted for a course of study, that the course will occupy the whole or a substantial part of his time, and that he can meet the cost of the course and of his own maintenance and that of any dependants during the course. Paragraph 19, as Lord Denning MR has said, provides certain prohibitions. He is to be refused an entry clearance as a student if the officer is not satisfied that he is able, and intends, to follow a full-time course of study and to leave the country on completion of it. Then there are certain provisions set out which are to guide the officer in arriving at his conclusion. Counsel for Miss Alexander has submitted, and for my part I accept the submission, that one is really required to follow the ordinary and natural meaning of the wording of the rules. I accept, of course, that this is not a statute, but one must, I think, assume that the rules mean what they say. When I look at para 21, the wording really does seem perfectly clear. The first part of the paragraph is concerned with the passenger who arrives carrying with him a current entry clearance. In such an event the immigration officer may admit him for a period of up to 12 months depending on the length of the course of study and on his means. You may then also get the case (and this is dealt with in the same part of the paragraph) of the passenger who arrives without a current entry clearance but is able to satisfy the immigration officer that he should get one. That is provided for: he is put on the same footing as the man with a current entry clearance.Then you get the residual case of the person who has no entry certificate and who cannot demonstrate to the immigration officer that he is in a position to get one, that is to say, that he fulfils all the requirements which are required for the issue of an entry clearance. In his case, subject to the one requirement that the immigration officer is satisfied that he has a genuine and realistic intention of studying in the United Kingdom, he 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. In my judgment, that clearly imports a discretion in the immigration officer on being satisfied of one thing, namely that the person has a genuine and realistic intention of studying in the United Kingdom. It is said by counsel for the Immigration Appeal Tribunal that it also imports the necessity of satisfying the immigration officer of the other condition which is prescribed in para 19: that is that he not only intends to follow a course of study but to leave the country on the completion of it. I am unable to follow that, because it seems to me that the language of the rules is almost compulsively against it. The first thing is that the rule is dealing with the person who 'cannot satisfy the requirements of the preceding paragraphs'. I find that 'requirements' is not a word which is used in either para 18 or para 19 and it is a word which is apt, I think, to cover all the conditions which an applicant must show before he can get his entry clearance, and that would include the two provisions in para 19. Second, the rule refers to 'the requirements of the preceding paragraphs'. Now 'the preceding paragraphs' are paras 18, 19 and 20. Paragraph 20 we can discard because it provides for persons who are coming here for medical training and nursing training and are admitted as students even though they are working whilst training. 'Paragraphs' means you have to look for more than one paragraph in which requirements are imposed; and that must, I think, be a reference to para 19 as well as to para 18. That is very much reinforced by the first sentence of para 21:

'A passenger who holds a current entry clearance, or who can satisfy the Immigration Officer that he fulfils all the requirements of the preceding paragraphs, may be admitted...'

There it does not seem to me to be possible to construe the phrase 'all the requirements of the preceding paragraphs' as being restricted simply to those in para 18, for the passenger cannot be equated with one holding a current entry clearance unless he satisfies both para 18 and para 19. Again, therefore, it seems to me that this is clearly a reference to the two sets of requirements which are imposed by para 18 and 19 and I do not see any logical reason why the same phrase should have a different meaning in the latter part of the paragraph. Furthermore, counsel for Miss Alexander has drawn our attention to the new para 24, which has now supplanted the rule we have just been looking at. Instead of referring to 'all the requirements of the preceding paragraphs', it refers to 'the requirements of paragraphs 21-23'. The new paragraphs 21-23 are in fact the paragraphs which supplant and provide in substantially the same words the matters which are set out in paras 18-20 that we are considering. For those reasons it seems to me that the rule is providing a discretion in the one case where the person applying for entry, is unable to produce an entry clearance certificate, can satisfy the immigration officer that he has a genuine intention of engaging in a course of study but cannot satisfy him as to the fulfilment of all the requirements contained in paras 18 and 19, which would include the requirement that he has the intention of leaving at the end of his course of study. That may seem a strange result, but I do not think that it is because it seems to me to be perfectly logical that there should be provided in these rules a locus poenitentiae to enable the student arriving here from abroad if necessary to get his affairs in order to satisfy the requirements for him to be allowed to stay. There seems to me to be nothing odd or unusual in conferring on the immigration officer a discretion enabling him to admit the person temporarily if he is satisfied that he does intend to be a student, leaving it to him to apply to the Home Office for further consideration of his case. For those reasons, therefore, I think that the Divisional Court arrived at the right conclusion, and I for my part would dismiss the appeal.

DISPOSITION:

Appeal allowed. Leave to appeal to the House of Lords refused. 21 January 1982. The Appeal Committee of the House of Lords granted leave to appeal.

SOLICITORS:

Treasury Solicitor; Seifert Sedley & Co (for the applicant).

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