Virendmakumar Patel v. Immigration Appeal Tribunal

VIRENDMAKUMAR PATEL v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal CIVIL DIVISION

[1983] Imm AR 76

Hearing Date: 29 June 1983

29 June 1983

Index Terms:

Practice and procedure -- Student -- Application by visitor for extension of stay as -- Whether appellant intended to leave at end of his proposed studies -- Whether a student only intending to so leave if he could not stay by any lawful means intended to leave within the meaning of the immigration rules -- Interpretation of word "studies" within the meaning of the immigration rules -- HC 394 paras 98, 105.

Held:

The appellant, a citizen of India and a qualified pharmacist, was admitted to the United Kingdom as a visitor for two months on 18 October 1979. On 11 December 1979 he applied for permission to take a one year polytechnic course for overseas pharmacists. The application was refused, and successive appeals against the decision were dismissed by an adjudicator and the Immigration Appeal Tribunal respectively. The present appeal was against the refusal by the Divisional court of an application for judicial review of the Immigration Appeal Tribunal's decision. Held: Where a person, as in the case of the appellant, only intended to leave if by no lawful means he could avoid it the Secretary of State had reason to believe that he did not intend to leave at the end of his studies. Per Dillon LJ. The decision of the Court of Appeal in ex parte Kharrazi [1980] 1 WLR 1396 that the term 'at the end of his studies' bore a wide meaning applied with equal force to the present case. "I do not, for my part, see why the word 'study' should not, in an appropriate context, include a recognised vocational training following academic studies in the same subject . . . There may also be instances of apprenticeship which would be covered by the word 'studies': that must depend on the facts". Per Lawton LJ: "In my judgement, the word 'studies' at the end of paragraph 98 of the immigration rules, which were put before Parliament on 20 February 1980, should be given a wide and sensible meaning . . . In my judgment, the ordinary meaning of the word 'studies' includes any activity which is related to the studies".

Cases referred to in the Judgment:

Ex parte Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 396, CA. Ex paret Alexander [1982] 2 All ER 766, [1982] 1 WLR 1072, [1982] Imm AR 50, HL.

Counsel:

Owen Davies for the appellant (applicant); Simon Brown for the respondent (respondent). PANEL: Lawton, Kerr, Dillon LLJ

Judgment One:

DILLON LJ. This is an appeal by Mr Virendrakumar Patel against a decision of the Divisional Court of the Queen's Bench Division consisting of a single judge, McCullough J, who refused the appellant leave to apply for judicial review of a decision of the Immigration Appeal Tribunal. It is convenient to set out the chronology. Mr Patel is a subject of the Republic of India and he qualified there as a pharmacist. He came to England on 18 October 1979. He entered as a visitor only, with leave to stay for two months. There is evidence that he told the Immigration Officer that he would not be staying longer than six weeks in the United Kingdom; he would be going to visit his parents in Dar es Salaam and then returning to India. On 11 December 1979, however, which was within the two months, he applied to stay for a year for a one-year course for overseas pharmacists at the Sunderland Polytechnic. On 5 January 1980 he married and on 8 January 1980 he made a further application for variation of the terms of his entry so as to stay indefinitely because of his marriage. The evidence is that the marriage was an arranged marriage. The woman he married was settled here and entitled to remain in this country, but she had not been born in the United Kingdom nor had either of her parents. It appears that, as the rule stood at the date of his application, it was likely that he would be allowed to stay because of this marriage, but the rules were changed and in the result, under the new rules, on 20 March 1980 his application to stay on the ground of his marriage was refused because his wife had not been born in the United Kingdom and nor had either of her parents. He appealed against that refusal to an Adjudicator but on 12 February 1981 that appeal was dismissed. In the meantime in late September or early October 1980 he started his one-year course in Sunderland. On 27 January 1981 the Secretary of State refused his application of 11 December 1979. The refusal was on the ground that the Secretary of State was not satisfied that he intended to leave at the end of his studies. Mr Patel appealed against that refusal. On 2 June 1981 his appeal was dismissed by an adjudicator. At about that time his one-year course which he had successfully completed ended. On 3 June 1981 a United Kingdom company sought permission to engage Mr Patel as a trainee for 12 months. Also at about that time Mr Patel appealed to the Immigration Appeal Tribuanl against the adjudicator's dismissal of his appeal. In August 1981 he embarked on his period of 12 months training. On 27 January 1982 the Immigration Appeal Tribunal dismissed his appeal from the adjudicator's decision of 2 June 1981. On 11 February 1982 the application for him to be engaged for one year as a trainee was refused. However, Mr Patel applied to the Divisional Court for leave to apply for judicial review of the decision of the Appeal Tribunal. That was the application which came before McCullough J. On 23 July 1982 McCullough J refused that application. On 10 September 1982 Mr Patel gave notice of appeal against that refusal and it is that appeal which now comes before this court. It is, of course, important that any immigration application should be carefully considered and it is well known that there are a very large number of those applications. Speaking for myself, however, I find it somewhat disturbing that the process of appeal during the course of which Mr Patel is lawfully allowed to remain in this country should have taken so long that, during its progress, he has been able to complete the one-year course in Sunderland, for which he was refused permission to remain in this country, and to complete the year as a trainee, for which he was also refused permission, and to remain in this country for a further nine or ten months after completion of that one year as a trainee. He now asks us, in effect, to hold that the Secretary of State was wrong in the view he expressed, and the Immigration Appeal Tribunal and the adjudicator were wrong in endorsing that view, that there was reason, to believe that Mr Patel did not intend to leave at the end of his studies. The relevant rules which we have to consider are embodied in HC 394. These are the Immigration Rules laid before Parliament in February 1980 under section 3 of the Immigration Act 1971 and they are rules of practice to be followed in the administration of that Act. The particular rule is rule 98, which reads as follows: "A student or would-be student who applies for variation of his leave for the purpose of study may, subject to paragraph 99" -- which for present purposes is irrelevant -- "be granted an extension for an appropriate period if he produces evidence, which is verified on a check being made, that he has enrolled for a full-time course of daytime study which meets the requirements for admission as a student; that he has (if he is a student) given and is giving regular attendance; and that he is able to maintain and accommodate himself and any dependants without working and without recourse to public funds. An extension should be refused if there is reason to believe that the student does not intend to leave at the end of his studies". It is common ground that the words "should be refused" are mandatory and mean "is to be refused". It is convenient to note also rules 105 and 22. Rule 105 says: "Visitors and students may be granted extensions to stay as trainees if the Department of Employment consider the offer of training to be satisfactory and if there is no reason to believe that the applicant does not intend to leave the United Kingdom on completion of his training: otherwise an extension should be refused". Rule 22, which is concerned with entrants as opposed to those who have entered under a different permission and seek a variation after entry, provides under the heading "Students": "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". It is submitted for the appellant, Mr Patel, that the words at the end of rule 98, "if there is reason to believe that the student does not intend to leave at the end of his studies", mean "if there is reason to believe that the student intends to remain illegally in this country at the end of his studies". I can see no reason at all for turning the wording of a sentence at the end of rule 98 upside down so as to put on it the gloss of illegality. The question of intention to leave is a question of fact to be decided on the available evidence and I see no need to ask any other question than the question posed by rule 98 itself, is there reason to believe that he did not intend to leave at the end of his studies? On the dates and facts of this case there is ample material to support the decision of the Secretary of State that there was reason to believe that he did not intend to leave at the end of his studies. In the decision of the Immigration Appeal Tribunal the Chairman said this, in a passage cited by McCullough J and approved by him: "It is common ground that the appellant satisfied all the requirements for students set out in the first sentence of paragraph 98 of HC 394. He does not however qualify for an extension 'if there is reason to believe the student does not intend to leave at the end of his studies'. If there is reason so to believe, the last sentence of the rule plainly states that an extension should be refused. The grounds of appeal contain the proposition that leave is only to be refused if the student intends to remain in the United Kingdom on conclusion of his course of study without leave or in breach of the immigration laws. The rule itself does not include the words 'without leave or in breach of the immigration laws'. On the face of it students, who are here for a temporary purpose, must, when that purpose has been achieved, depart. The reason why they have been allowed to stay has been achieved. It is not intended that the student rules should be used as a step to achieve settlement. If a non-patrial wishes to settle in this country he must qualify under the rules relating to settlement. He cannot, as it were, use the student rules as 'the thin edge of the wedge'". I entirely agree with that. The policy of the rules is clear. If a person seeks permission to enter as a student or for some other temporary purpose, he is only to be allowed to come in if he can satisfy the immigration authorities that he intends to leave when the course of studies is completed or the other temporary purpose, whatever it may be, is accomplished. He cannot come in if he intends to use his course of studies as a stepping stone to settlement. It is put for the applicant that he desires to stay if, by any means, he lawfully can do so. He has no desire to break the law. It is, therefore, said that the interpretation of the law adopted by the Secretary of State, the adjudicator and the Appeal Tribunal was wrong. It seems to me, however, that it can very fairly be said of a person who only intends to leave if by no lawful means can he avoid it, that the Secretary of State has reason to believe that he does not intend to leave at the end of his studies. That is enough, so far as the circumstances of the present case go, to dispose of this appeal. However, argument has, not unnaturally, proceeded to consider many possible alternative sets of facts and we have been asked to give a measure of guidance. It is not necessary to go into a vast range of alternative sets of facts, nor would it be helpful to do so. Any guidance the court can give must be limited. For my part, I would merely say this. First, I do not find it helpful to consider judgments in earlier cases decided when the rules were worded differently, because the contexts would have been different and the points at issue against which the words of the judgments were used would have been different. Secondly, the question whether there is reason to believe that a student does not intend to leave at the end of his studies is a question of fact to be decided by the Secretary of State or by an Entry Clearance Officer or an Immigration Officer on the available evidence. It is not necessarily an easy question to decide in a particular case, but it does not help to erect an edifice of learning over it and seek to transform it into a multiplicity of sub-questions of law. Thirdly, the term "at the end of his studies" bears a wide meaning. This was held by this court in the case of Ex parte Kharrazi [1980] 1 WLR 1396. That was actually a decision on the words in the course of Rule 22 "to leave the country on completion of his course of study". It must apply with equal force to rule 98. It would cover the student going to Oxford to read medicine and intending to go on to a teaching hospital to complete his qualification as a doctor. It would cover the student taking a first degree course who hopes, if he proves good enough, to be invited by his college or university to stay on to take a post-graduate course or doctorate in the same subject or a branch of it. I do not, for my part, see why the word "study" should not, in an appropriate context, include a recognised vocational training following academic studies in the same subject -- as, for instance, pupilage at the Bar for a law student, the compulsory pre-registration year in hospital for a medical student and possibly (but I do not express a concluded opinion) further accepted training in medicine for a newly qualified doctor who seeks to qualify also to practise as a GP. There may also be instances of apprenticeship which would be covered by the word "studies": that must depend on the facts. But the word would not include, as it seems to me, a mere amassing of practical experience in paid employment after completion of studies and not under any recognised process of further vocational training, even though practical experience would often make the student more useful in practising his profession in his own country. The fact, however -- and this is the fourth proposition I would express -- that a student has it in mind, and honestly declares on entering the country to take a particular course of studies, that he would be very happy, if the requisite consents were forthcoming at some stage in the future, to gain practical experience in paid employment after his course of studies is over before returning to his native country, does not inevitably mean that there is reason to believe that he does not intend to leave at the end of his studies. It is merely a factor to be considered. A present intent to leave at the end of a course of studies is not nullified by the expression of a hope that, on the happening of some future event, an applicant may be given permission to enable him to stay longer for some purpose related to his studies before he returns to his own country or leaves this country for some other destination. But it may very well be nullified if he intends or has it in mind, at the time of his entry or at the time of his application for a variation of permission to stay, to seek to stay on for some purpose unrelated to his studies. Since cases must depend on their own facts, I do not think it would be appropriate to attempt to give any more general guidance. I would only add this, that the learned judge, McCullough J, found some assistance in the rules which are concerned with doctors and dentists, who may be given permission to undertake work during the course of their studies. I do not find those rules of assistance when the question is what the applicant intends to do after completion of his studies. I would dismiss this appeal.

Judgment Two:

KERR LJ. I agree and there is nothing that I wish to add.

Judgment Three:

LAWTON LJ. I too agree and only wish to add this. In my judgement, the word "studies" at the end of paragraph 98 of the Immigration Rules, which were put before Parliament on 20th February 1980, should be given a wide and sensible meaning. McCullough J's judgment might be read by some as meaning that the word "student", in so far as it occurs in these regulations, has the meaning which is familiar to graduates at the Universities of Oxford and Cambridge of being in statu pupillari. I do not think that it has such a narrow meaning. "Studies" can include the gaining of experience. A candidate for membership of the Royal College of Physicians, for example, in the course of his studies has to gain clinical experience. Some universities running engineering courses require students on those courses to undertake, during the period of their studies, work in engineering factories or on engineering sites. As Lord Roskill pointed out in the case of The Queen v Immigration Appeal Tribunal Ex parte Alexander [1982] 1 WLR 1072 at p 1080, "The rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory regulation. They must be construed sensibly according to the natural meaning of the language which is employed". In my judgement, the ordinary meaning of the word "studies" includes any activity which is related to the studies.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Messrs Albert Aung; Treasury Solicitor.

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