R v. Secretary of State for the Home Department, Ex parte Tolba, Bettancourt, Akinsanmi; R v. Immigration Appeal Tribunal, Ex parte Acquah, Rahman, Gonzales-Rojas

Queen's Bench Division

 

[1988] Imm AR 78

Hearing Date: 1 October 1987

1 October 1987

Index Terms:

Leave to enter the United Kingdom -- stamp in passport incomplete or illegible -- whether indefinite leave is deemed to have been granted. Immigration Act 1971 ss 3(1), 3(2), 3(3)(a), 3(3)(b), 3(4), 4(1), 14(1), sch 2 paras 2, 6. HC 169 paras 1, 3, 4, 56, 92.

Re-admission under s 3(3)(b) -- whether that stamp can validate an earlier partly illegible stamp -- whether where original passport stamp is incomplete as to reference to s 3(3)(b), indefinite leave is deemed to have been granted.

Immigration Act 1971 s 3(3)(b), sch 2 paras 2, 6.

Returning resident -- deemed grant of indefinite leave on earlier entry -- immigrants not aware of indefinite leave so secured -- re-admitted with limited leave -- the extent of immigration officer's duty -- whether immigrant can subsequently claim returning resident status -- the meaning of "is to be admitted for settlement" in HC 169, para 56. Immigration Act 1971 s 3 sch 2 paras 3, 6. HC 169 para 56.

Held:

The six cases for judicial review all raised questions as to the application of the provisions of the Immigration Act 1971 where a stamp put in a passport was illegible or partly illegible. In each case the immigration officer had intended to grant limited leave: common to all the applications was the issue whether, where such a limited leave stamp was illegible, there was the deemed grant of indefinite leave. If indefinite leave were secured in consequence of such a stamp then on the immigrant's departure from the United Kingdom, it lapsed. On his return he would, if he were aware of the position, be entitled to claim returning resident status. However, if he were unaware of his rights in that regard, the question arose whether there was an obligation on the part of the immigration officer to draw the attention of the immigrant to those rights. The facts in the individual cases are set out in the judgment. Held: 1. Under the provisions of the 1971 Act notice of leave could only be given by notice in writing. 2. A stamp in a passport could not be notice in writing "unless, viewed objectively it can reasonably be expected to convey the relevant information to the mind of the average intending immigrant of the class to which the particular immigrant belongs". 3. Minor defects (which led to no ambiguity) were immaterial. 4. The stamp, however, became ineffective if it were necessary to choose between possible inferences, or if it could only be interpreted by someone who knew what type of stamp was usually used for a particular type of leave. 5. Where a person was re-admitted during the period of his current intended limited leave, the "s 3(3)(b) stamp" could only be effective if the earlier stamp to which it related were itself legible in toto and hence itself effective. 6. The phrase "is to be admitted for settlement" in paragraph 56 of HC 169 was not to be interpreted too strictly. An immigrant was only to be so admitted if he sought to be admitted for settlement. There "is no obligation on an immigration officer to advise an immigrant who seeks admission only as a visitor or a student, for a limited period, of his right to be admitted for settlement."

Cases referred to in the Judgment:

Lamptey v Owen [1982] Crim LR 42. Coomasaru v Immigration Appeal Tribunal [1982] Imm AR 77: [1983] 1 WLR 14. Secretary of State for the Home Department v Mansour [1985] Imm AR 1. R v Immigration Appeal Tribunal ex parte L Ron Hubbard [1985] Imm AR 110.

Counsel:

G Warr for the applicant Tolba; Miss C Fielden for the applicant Bettancourt; JAK Siaw for the applicant Akinsanmi; I Macdonald for the applicants Acquah and Rahman; S Gill for the applicant Gonzales-Rojas; J Laws for the respondent Secretary of State; R Jay for the respondent Tribunal. PANEL: Kennedy J

Judgment One:

KENNEDY J: These six applications for judicial review have certain common features. In each case there is an immigrant whose passport has not been stamped as it should have been. In some cases it seems that there is no stamp at all and in other cases there is a stamp but it is at least partially illegible. As a result each principal applicant claims to have received indefinite leave to enter the United Kingdom. Some claim that on some subsequent entries to the United Kingdom they should have been treated as returning residents, and in certain cases there is a wife whose application, it is agreed, stands or falls with that of her husband. So before I turn to the individual cases I propose first to set out the relevant provisions of the Immigration Act 1971 and the relevant immigration rules, and, secondly, to consider four general issues which arise out of this group of cases. Section 3(1) of the 1971 Act lays down the general principle that a non-patrial may not enter the United Kingdom without leave, which may be granted for either a limited or an indefinite period. By section 3(2) the Secretary of State is given power to make rules governing applications for leave. Section 3(3) provides: "In the case of a limited leave to enter or remain in the United Kingdom, -- (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b) the limitation on and any conditions attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave." Section 3(4) provides: "A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply." Section 4(1) provides: "The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order or by statutory instrument." Section 14(1), in so far as it is material provides: ". . . a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it . . ." Schedule 2 of the Act deals with administrative measures as to control on entry, and paragraph 2 of that schedule permits an immigration officer to examine those who arrive by ship or aircraft to determine British citizenship, and in the absence thereof to determine whether the person or persons in question "should be given leave and for what period and on what conditions (if any), or should be refused leave". Then paragraph 6 of the schedule, in so far as it is material, provides: ". . . where a person examined by an immigration officer . . . is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination . . . and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not patrial) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave." The immigration rules set out in HC 169 came into force on 16th February 1983, and most of the entries into the United Kingdom which have to be closely considered in dealing with this group of cases took place after that date, so I start with those rules. Rule 1 provides, inter alia: ". . . A person is 'settled in the United Kingdom' when he is ordinarily resident here without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he may remain." Rule 3 imposes upon a person arriving in the United Kingdom the duty to produce his passport and to respond to the immigration officer's requests for information. Rule 4 makes it clear that everyone requires leave to enter except British citizens and Commonwealth citizens with an established right of abode. None of the applicants with whom I am concerned fall into either of those categories. Rule 56, in the section of the rules dealing with "Returning Residents", is of particular importance in the context of these cases, and it provides: ""A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas . . . is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than 2 years." Part X of the rules deals with rights of appeal and in that part rule 92 provides: "Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused, provided he applies before the time limit on his stay expires." I turn now to the general issues. First, "the effect of a partially illegible stamp". It is clear from the words of section 4(1) of the Act that an immigration officer can only exercise the power to give or refuse leave to enter by giving notice in writing. The writing is not simply evidence of the exercise of the power, it is the very means of exercising it, and, by virtue of paragraph 6 of Schedule 2, if no notice in writing is given within 12 hours, either refusing or giving only limited leave, then the intending immigrant is deemed to have been given indefinite leave to enter (see Lamptey v Owen [1982] Crim LR 42 and Secretary of State for the Home Department v Mansour [1985] Imm AR 1). The stamp on a passport is habitually the means chosen by immigration officers to give notice in writing for the purposes of section 4 of the Act, and so whenever it is claimed that a stamp is wholly or partially illegible, there arises a question of fact, namely whether what appears on the passport can or cannot reasonably be regarded as notice in writing for the purposes of section 4. It cannot in my judgment be so regarded unless, viewied objectively, it can reasonably be expected to convey the relevant information to the mind of an average intending immigrant of the class to which the particular immigrant belongs. As the point has not been argued in relation to any of the cases with which I am concerned, I do not pause to consider any problems which may arise from unfamiliarily with the written word, or with the English language, and I accept that not every minor defect will render the stamp an ineffective notice. If the words are obvious, the defect is immaterial. Similarly, if the lettering is affected but the inference is irresistible, for example, if leave is given for admission for six months, but the letter "i" of six is missing. But once it becomes necessary to choose between possible interences then, in my judgment, it cannot any longer be said that the stamp on the passport constitutes effective notice in writing for the purposes of section 4, and if the stamp can only be interpreted by someone who knows which type of stamp is normally used when a particular type of leave is being granted, then plainly it cannot amount to notice in writing for the purposes of section 4, save perhaps in the exceptional circumstances in which an intending immigrant has the specialised knowledge to which I have just referred. As Mr Laws accepts, the approach which I have suggested should be adopted when deciding what constitutes an adequate notice in writing for the purposes of section 4(1) of the Act is in line with recent decisions of the Immigration Appeal Tribunal, and I gratefully acknowledge the assistance which those decisions afford. I turn now to the use of section 3(3)(b). The second issue about which I consider it appropriate to say something at this stage concerns the use which can be made of the power set out in section 3(3)(b). Normally leave to enter or to remain in the United Kingdom lapses when the holder of that leave goes abroad (see section 3(4)), and he has to re-apply for leave on re-entry, even if he returns within the period for which leave was originally granted. Section 3(3)(b) merely provides for the possibility of his being given leave again on the same terms but, in my judgment, if it is to be invoked the process of invocation must, because of the way in which the subsection is drafted, begin with the original grant of leave, or with the variation which brought into existence the relevant limitation or condition. The subsection expressly envisages the limitation or conditions being "imposed so that they will if not superseded" apply also to any subsequent grant of leave within the originally prescribed period. So a decision has to be taken at the time when the limitation or conditions are originally imposed, and if then it is decided so to impose the terms that, by virtue of section 3(3)(b), they will if not superseded apply to a leave obtained in the future, that decision is normally signified by means of an additional stamp in the passport. For example, in one case with which I am concerned this "enabling endorsement", if legible, would have read: "This will apply, unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above." Then, when the passport holder sought to re-enter the United Kingdom within that limited period, his passport was stamped simply "Given leave to enter -- section 3(3)(b)". What was the effect of those stamps, is something about which I must say more when I come to deal with the facts of that case, and for the moment I say no more about section 3(3)(b). I turn now to the situation which arises upon the return to the United Kingdom within two years of an immigrant who on his previous visit obtained indefinite leave to enter -- either by direct grant, or by virtue of the deeming provisions of paragraph 6(1) of schedule 2 to the 1971 Act (which take effect when no sufficient notice of refusal or limitation has been given within the time allowed). Paragraph 56 of HC 169 provides that "on satisfying the immigration officer that he had indefinite leave to enter or to remain in the United Kingdom when he left and that he has not been away for longer than 2 years" the immigrant "is to be admitted for settlement". It seems to me that the words of this rule must not be too strictly construed. For political or other reasons a returning immigrant may not wish to be admitted for settlement. He may only wish to be admitted as a visitor, or as a student, for a limited period, and it would, in my judgment, be wrong so to interpret paragraph 56 as to require the immigration officer to admit the immigrant for settlement. So the effect of paragraph 56 is to require the immigration officer to admit the immigrant for settlement. So the effect of paragraph 56 is to require the immigration officer to admit the immigrant for settlement if that is what he seeks, and in my judgment there is no obligation on an immigration officer to advise an immigrant who seeks admission only as a visitor, or as a student, for a limited period, of his right to be admitted for settlement. In R v Immigration Appeal Tribunal, ex parte Coomasaru [1983] 1 WLR 14 the Court of Appeal was concerned with an immigrant whose passport had at one time in error been stamped so as to indicate that he held diplomatic status, and the decision turned on the effect of that stamp, but some consideration was given to the position of an immigrant who did not at the time of entry ask for that to which he was entitled, perhaps because he was unaware of his legal rights, and who later appealed. The Master of the Rolls, at page 20C, said: "First, I would repudiate any suggestion that an immigration appeal necessarily involves any criticism of the immigration officer. He may merely not have appreciated the true facts. Second, I would draw a distinction between the case of an immigrant who always wanted the type of entry permit which he claims in the appeal, whether or not he asked for it at the time of entry, and one who, subsequent to entry, changed his mind. The latter is not in my view entitled to complain of the conditions attached to his entry permit or to seek a variation unless he can bring himself within HC 80." -- The post entry rules then current. -- "The former is entitled to do so in reliance upon HC 79." -- The pre-entry rules. -- "On the facts of any particular case, the Secretary of State and, on appeal, the adjudicator and the Immigration Appeal Tribunal will take full account of the fact, if such it be, that when the immigrant entered the country he did not ask for the type of entry permit which he is now seeking and will demand an explanation in order to be satisfied that this is not merely a case of a change of intention." The Master of the Rolls then went on to say that in the light of the Court's decision on the other issue this particular issue did not arise for decision in that case. So, strictly speaking, I am bound to follow what the Court of Appeal has said. I turn now to the individual applications and, abandoning list order, I deal first with Sonia Bettancourt. She is a 33 year old Venezuelan woman who came to the United Kingdom from Spain in February 1981. The stamp then placed upon her passport is illegible, and she says that she at once returned to the immigration officer to ask for clarification. However, he was busy and she was sent away. Subsequently she married, and in April 1985 the Paddington Law Centre on her behalf contended that the effect of the illegible stamp was to give her leave for an indefinite period, and asked that her passport should be marked accordingly. On 24 February 1986 the Home Office replied contending that "the words 'six months' can be read albeit with difficulty, and the Secretary of State is therefore unable to grant indefinite leave to remain". That contention has not been pursued before me and on the facts as I know them it seems to me that by virtue of paragraph 6(1) of schedule 2 to the 1971 Act, this applicant must be deemed to have received indefinite leave to enter 12 hours after she left the immigration officer on the 12 February 1981. By virtue of that same paragraph the immigration officer must now, as soon as is practicable, give her written notice of that leave. Accordingly, in her case I quash the decision of 24 February 1986, and invite the Secretary of State to give further consideration to the Paddington Law Centre's letter of 24 April 1985 in the light of what I have just said. The next application with which I propose to deal is that of James and Elizabeth Akinsanmi, who are husband and wife. It is common ground that in this case the wife's application stands or falls with that of the husband, so I turn to the history of his case. He is a 32 year old Nigerian who arrived in the United Kingdom on 21 January 1982. It is now, as I understand the position, common ground that the stamp then put on his passport was, and is, illegible. Five days later, on 26 January 1982, Kent & Taylor (Consultants) sent the passport to the Secretary of State under cover of a pro-forma letter which asked that "consideration be given to the granting of an extension of stay" and which concluded in manuscript, "NB explanatory letter to follow". No such letter did follow, even though on 22 March 1982 the Home Office wrote to Kent & Taylor asking for "full evidence to substantiate the basis on which Mr Akinsanmi seeks to remain in the United Kingdom", and on 10 December 1982 the Secretary of State refused the Kent & Taylor application. Kent & Taylor served notice of appeal, but no one attended when the appeal was due to be heard and it was dismissed. According to what now appears in Mr Akinsanmi's affidavit the Kent & Taylor application was misconceived from the outset, because on 26 January 1982 Mr Akinsanmi consulted them not about an extension of leave, but simply to enquire how long he was permitted to stay. Later he decided to study engineering and made several unsuccessful attempts to clarify his position by contacting Kent & Taylor. In October 1982 his estranged wife arrived from Nigeria and soon afterwards they were reconciled. He heard nothing either from the Home Office or from Kent & Taylor until August 1985 when he telephoned the Home Office in search of his passport. He was advised to contact Kent & Taylor from whom he eventually recovered it. Then on 21 October 1985 he was arrested as an overstayer and was taken to a police station where he was interviewed. According to the notes of that interview which the applicant signed, he came to the United Kingdom to study after he had been made redundant in Nigeria, but told the immigration officer when he arrived that he would stay a few days on his way to Nigeria. In his most recent affidavit the applicant denies having deceived the immigration officer on arrival and disputes the accuracy of the interview note. He says that the decision to study was taken two months after he arrived in the United Kingdom. In February 1986 the applicant consulted his present solicitors and on 22 May 1986 they, for the first time, in a letter to the chief immigration officer suggested that as the stamp which had been placed on the passport in 1982 was illegible the applicant had obtained indefinite leave to remain. In a reply from the Home Office dated 6 August it is stated that "the Secretary of State has carefully considered Mr Akinsanmi's immigration position but is not prepared to concede that the stamp in his passport dated 21 January 1982 constitutes indefinite leave to remain." That is the decision which is now challenged, together with the deportation order dated 2 November 1984, and in my judgment the challenge must succeed. Although the illegible stamp did not of itself constitute indefinite leave to remain, by virtue of paragraph 6(1) of schedule 2 to the 1971 Act this applicant also is deemed to have been given that leave on or about 21 February 1982. I have only gone into the subsequent history in some detail in deference to Mr Laws' submission that because of that history I should exercise my discretion to refuse relief. On the information at present available to me I do not consider that it would be right for me to take that course. Accordingly I propose in this case to order that the deportation order dated 2 November 1984 and the decision embodied in the letter of 6 August 1986 be set aside, so that the way will be open for the Secretary of State to reconsider the solicitor's letter of 22 May 1986 in the light of what I have already said. Mohammed Mostafa Ahmed Tolba is an Egyptian who first came to the United Kingdom as a student in 1978. Later he was joined by his wife and in April 1982 they both left. When he returned to the United Kingdom on 2 October 1983 his passport was stamped but part of what was stamped upon it is illegible. In particular it is not possible to read for how long he was given leave to enter. He left again on 7 January 1984 and on 5 February 1984 he and his wife returned and were admitted for one month as visitors. He now contends that on this occasion he should have been admitted for settlement as a returning resident, pursuant to paragraph 56 of HC 169, but that contention was not advanced in February 1984, or for some time thereafter. In February 1985 he and his wife sought leave to remain as a businessman with a dependant wife. On 2 August 1985 that application was refused and he then appealed to an adjudicator. The appeal was dismissed. Then on 11 November 1986 the applicant's solicitors wrote to the Home Office raising for the first time the contention upon which he now relies. On 19 March 1987 the Home Office replied that if the argument (as to the effect of the illegible stamp) had been put to the appellate authorities before Mr Tolba embarked on 7 January 1984 it would probably have been accepted, but on 5 February 1984 "Mr Tolba did not claim to be a returning resident nor, in the ordinary sense of the term, could he have thus regarded himself. Indeed", the letter continues, "our records show that he and his representatives have always considered him to be a visitor here. In these circumstances it would be wholly inappropriate to consider his case under the terms of paragraph 56". The letter then goes on to deal with the possibility of limited leave being granted to facilitate medical treatment, and I am told that such leave has now been granted, but of course Mr and Mrs Tolba are still pursuing this application because if it succeeds they have a prospect of unlimited leave. The challenge is to the decision embodied in the letter from which I have just quoted, but in my judgment the reasoning set out in that letter cannot be faulted. Before he left the United Kingdom on 7 January 1984 the applicant did have indefinite leave to enter and to remain which he had obtained in October 1983 when his passport received the defective stamp. But that leave lapsed on 7 January 1984 when Mr Tolba went abroad and upon his return to the United Kingdom he did not seek admission as a returning resident. Indeed neither he nor anyone on his behalf even thought of doing so until 11 November 1986, by which time it was far too late for that claim to be made. On behalf of the applicant, Mr Warr submitted that on 5 February 1984 the immigration officer who looked at the applicant's passport should have seen the defective stamp and recognised the implication (namely, that the applicant must be deemed to have received indefinite leave to enter). According to Mr Warr the immigration officer should also have appreciated that the applicant was returning to the United Kingdom after an absence of less than two years and, bearing in mind the provisions of rule 56 of HC 169, he should have offered to admit the applicant for settlement. In so far as what was said by the Master of the Rolls in Coomasaru's case suggests otherwise that authority can be disregarded, because the passage in question was obiter, and also in Coomasaru's case the court was concerned with an earlier version of the immigration rules in which the state of mind of the intending settler played a more prominent part. I reject those submissions. Although the Court of Appeal was considering an earlier version of the rules it seems to me that what was said is helpful and persuasive. In my judgment under the present rules it is for the immigrant to satisfy the immigration officer that he has not been away for longer than two years and that before leaving he had indefinite leave to enter or to remain. Then he can claim the right as a returning resident to be admitted for settlement. In practice in many cases the immigration officer may be easily satisfied as to the first two matters when he sees the passport and he may offer admission for settlement, but he is under no obligation to do so. If, as Mr Warr suggested in argument, the immigrant is a child travelling alone, then the immigration officer will no doubt take extra care when trying to establish what form of leave to enter is being sought and whether the applicant is entitled to it, but even with a child it seems to me that if admission for settlement as a returning resident is not the form of admission which is sought at the time of entry the time will come when it is no longer open to the immigrant to say that admission for settlement was what he always wanted. So the application of Mr Tolba fails and so the application of his wife will also be dismissed. Frederick Acquah is a 33-year-old Ghanaian. He first came to the United Kingdom in 1979 and was given limited leave to enter as a visitor. He then applied to remain as a student. Whilst that application was under consideration he left the United Kingdom for a few days and when he returned on 30 October 1983 he was given leave to enter for two months with the usual restrictions as to employment. It is important to note that on that occasion nothing was entered in the passport to indicate that the conditions were being imposed so that they would if not superseded apply also to any subsequent grant of leave. In other words, there was no section 3(3)(b) enabling stamp. On 15 November 1983 the applicant left the United Kingdom for a day and when he returned his passport was stamped "Given leave to enter -- section 3(3)(b)." On 20 December 1983 he left again and when he returned on 14 February 1984 he was given leave to enter for two months, employment restricted. He applied to remain as a student, but in May 1984 that application was refused. However, the notice of refusal went to the wrong address. It was reiterated on 10 May 1985, and the second ground of appeal against that notice raised the issue with which I am concerned. The applicant contended that he was admitted to the United Kingdom for an indefinite period on 15 November 1983, that he should have been re-admitted as a returning resident on 14 February 1984, and that he should now be granted indefinite leave. The argument, which I accept, is that if on 30 October 1983 the immigration officer wanted to impose the conditions so that they would if not superseded apply also to any subsequent leave which the applicant might obtain within the prescribed period he was free to do so, but in doing so he would be exercising the power under the Act to give leave and, by virtue of section 4(1), that power could only be exercised by notice in writing given to the person affected. It was not so exercised, so when on 15 November 1983 the applicant left the United Kingdom the conditions imposed on 30 October 1983 ceased to have any effect, and section 3(3)(b) could not be relied upon in order to attach those conditions to any future grant of leave. Of course, as Mr Laws points out, the immigration officer who admitted the applicant on 15 November 1983 could, without any reference to section 3(3)(b) have re-imposed the conditions which had first been imposed on 30 October 1983, but that is not what he did. He used a stamp which said simply: "Given leave to enter -- section 3(3)(b)". To the applicant that reference to the statute was probably meaningless, so I question its value as a notice. However, had the usual section 3(3)(b) enabling stamp been used on 30 October 1983 the subsequent reference to section 3(3)(b) would have been unnecessary, because by virtue of the original stamp the applicant would have known that the conditions originally imposed applied until superseded, and as the enabling stamp was not used on 30 October 1983 the attempt which was made on 15 November 1983 to invoke section 3(3)(b) was bound to be ineffective. Before the adjudicator the applicant was unsuccessful on this and on another ground with which I need not be concerned. On appeal to the Immigration Appeal Tribunal his argument succeeded, but it was held that his appeal to the adjudicator was out of time and that the indefinite leave which he obtained on 15 November 1983 lapsed on 20 December 1983 when he once again left the United Kingdom. Before me Mr Jay, for the Tribunal, concedes that the appeal was brought in time, so that point has gone, but before the Tribunal this applicant was contending that in February 1984, when he next entered the United Kingdom after his departure in December 1983, he should have been considered as a returning resident applying under paragraph 56 of HC 169 for admission for settlement. But as the Tribunal found, that was not what was in his mind. In the last paragraph of its determination the Tribunal says that the appellant's case is based on precisely the converse -- that he did not intend to settle: "His evidence before the adjudicator stressed his intention to leave the United Kingdom on completion of his studies. It would seem out of the question that the appellant can now say that despite what he said about his intention at that time, he really intended to settle here. In our opinion, therefore, the appellant has no ground for application of variation of the limited leave granted to him on the 14 February 1984 so as to be granted indefinite leave." Mr Macdonald, for the applicant, has advanced four propositions. First, that on 15 November 1983 the applicant received indefinite leave to enter. That is a proposition which, as I have indicated, I, like the Tribunal, am prepared to accept. Secondly, Mr Macdonald submits that under paragraph 56 of HC 169 on 14 February 1984 the applicant was entitled to returning residents' status. Again I agree provided, as I indicated in dealing with Mr Tolba, that is what was sought. Thirdly, Mr Macdonald submits that the right to claim returning residents' status is enforceable on an appeal to an adjudicator or on an appeal to the Immigration Appeal Tribunal. Here Mr Macdonald relies not only on the passage from the judgment of the Master of the Rolls in Coomasaru's case, to which I have already referred, but also on paragraph 92 of HC 169 which in effect invites an immigrant who is troubled by a time limit or condition imposed upon his leave to enter to apply to the Home Office for a variation. If this application is refused he can then appeal, but, submits Mr Macdonald, there is an underlying implication in paragraph 92 that if the applicant has a genuine grievance the Secretary of State will remedy it. If the applicant has on entry overlooked his right to claim admission for settlement his omission can be put right. Mr Macdonald reminded me that in the case of R v Immigration Appeal Tribunal, ex parte Hubbard [1985] Imm AR 110 Woolf J held that the appellate authorities were not confined to considering matters on which the Secretary of State based his decision, but the difficulty which, in my judgment, confronts Mr Macdonald in the present case is that, as the Tribunal found, neither on 14 February 1984 nor thereafter did this applicant seek to be admitted for settlement, and paragraph 56 of HC 169 can only be invoked by a returning resident who seeks admission for that purpose. Coomasaru offers some assistance to an applicant who fails to express his intention at the time of entry, perhaps because of ignorance of his legal rights, but it affords no assistance to an applicant who did not have that intention at the material time. Fourthly, in the alternative, Mr Macdonald seeks redress against the Secretary of State. This falls outside the scope of the Grounds for Relief set out in Form 86A, but features in paragraph 3 of the affidavit of Mr Burgess, where he says that even if the Tribunal were unable to correct the Minister's failure to grant the applicant indefinite leave this court can and should. Without granting leave to amend I heard submissions in support of this proposition. It seems to me that it adds nothing to the applicant's case and I see no reason at this very late stage to grant the leave which Mr Macdonald seeks. Accordingly, this application fails and is dismissed. Mohammd Arifur Rahman is a 30-year-old native of Bangladesh. He first came to the United Kingdom in October 1978 and received limited leave to enter as a student. On 19 September 1983 when he returned to the United Kingdom after a short period abroad his passport was stamped but what was stamped upon it is only partially legible. As the Immigration Appeal Tribunal has stated, the endorsement upon the passport reads: "Leave to enter the UK on cond . . . twelve months MX 991 612. This will apply unless . . ." On 9 November 1983 he left the United Kingdom but returned again on 24 November 1983 when his passport was stamped "Given leave to enter -- section 3(3)(b)", and since that time he has remained in the United Kingdom. On 25 July 1984 the Joint Council for the Welfare of Immigrants wrote to the Home Office asking for confirmation that he had been admitted unconditionally on 24 November 1983. On 15 October 1984 the Home Office replied asserting that the section 3(3)(b) enabling stamp used on 19 September 1983 although indistinct is legible, and contending that the applicant had never received indefinite leave to enter or remain. The applicant appealed to an adjudicator, who, on 21 January 1986, dismissed his appeal. The matter then went to the Immigration Appeal Tribunal which felt unable to follow the Tribunal decision in the case of Acquah. In the present case the Tribunal held that: (i) the section 3(3)(b) enabling stamp is unnecessary, because it is no more than an indication to an immigration officer who may see the passport on some future occasion that the entrant may be admitted without further enquiry unless for some reason the immigration officer is of the view that the circumstances have changed, and (ii) the stamp used on 24 November 1983 was no more than a signal to subsequent immigration officers and the Home Office that the passenger was admitted for the period and subject to the conditions originally imposed, and that he was effectively so admitted. If I am right in what I have already said about the use of section 3(3)(b) this decision cannot stand and Mr Jay for the respondent concedes that the appeal must be allowed. Accordingly, the determination of the Immigration Appeal Tribunal notified on 2 July 1986 must be quashed. The Secretary of State will then be able to reconsider his response to the letter of 25 July 1984. In that context it may be of assistance if I say in terms that the stamp used on 24 November 1983 could not invoke section 3(3)(b) because the enabling stamp used on 19 September 1983 was insufficiently legible and accordingly, in my judgment, on or about 24 November 1983 the applicant, by virtue of the provisions of paragraph 6(1) of Schedule 2 of the 1971 Act, received indefinite leave to enter. Gaspar Gonzales-Rojas is another Venezuelan. He came to the United Kingdom as a student in 1978 and left in 1982. On 6 January 1983 he returned to the United Kingdom and his passport was ineffectively stamped. All that could be read was "leave to enter for . . . employment pro . . ." On 20 May 1983, apparently in the belief that he had been given leave to enter for six months, the applicant applied for an extension of leave for a further six months, and that was granted. On the 18 December 1983 he left the United Kingdom and returned on 7 January 1984. Then he was given leave to enter for two months and his complaint now is that on this occasion he should have been treated as a returning resident and admitted for settlement. The leave granted in January 1984 was extended and on 6 October 1984 the applicant again left the United Kingdom. He returned on 30 November 1984 and was given leave to enter for one month. That leave was extended once, but a further extension was refused. He appealed and in his grounds of appeal alleged for the first time that he had been granted indefinite leave to enter the United Kingdom on 6 January 1983 and that he should have been admitted thereafter as a returning resident. The adjudicator found that because of the admittedly defective stamp the applicant was given indefinite leave to enter on 6 January 1983 but that leave lapsed when the applicant left the country on 18 December 1983. The applicant did not thereafter seek re-admission as a returning resident which, as the adjudicator held, he would have had to do either at the time of admission or within the limited period for which leave was then granted in order to avail himself of the provisions of paragraph 56 of HC 169, so on this ground as well as on the substantive ground with which I am not concerned the appeal to the adjudicator failed. The matter then went to the Immigration Appeal Tribunal which agreed with the adjudicator. The Tribunal held that the refusal of the belated application to remove the time limit imposed on 7 January 1984 when the applicant was given leave to enter did not attract a right of appeal and concluded: "Further, even if there is a right of appeal from the refusal of the application for indefinite leave, the applicant's right of entry as a returning resident is the right to be admitted for settlement. By the principles of Coomasaru, an applicant seeking to have conditions of entry removed as being erroneously imposed must establish that was his intention at the time of entry. As the applicant's expressed intentions on 30th November 1984 were the very converse of settlement, he cannot now be heard to say that he intended settlement." Accordingly leave to appeal to the Tribunal was refused on the basis that there was no arguable point of law, and it is that decision of the Immigration Appeal Tribunal which is now being challenged. The first, and originally the only ground on which relief is sought is that there was a duty on the immigration officer who admitted the applicant on 7 January 1984 and on the Home Office official who saw his passport thereafter (presumably when he applied for an extension of leave) to point out the effects of the defective stamp, and that the failure to discharge that duty "amounts to serious negligence which would act as a kind of estoppel to prevent the Immigration Authorities from now relying on section 3(4) of the Immigration Act 1971". Mr Gill for the applicant has, however, added two further grounds. His second ground alleges that the Tribunal erred in law in holding that the applicant had no right of appeal to an adjudicator, and his third ground alleges that the Tribunal erred in law in holding that the applicant did not come within the class of persons which in Coomasaru it was indicated would have a right of appeal against the conditions attached to their leave even though they did not ask at the time of entry for the leave which they claim in the appeal. The first ground on which relief is sought, the quasi-estoppel point, seems to me to be totally devoid of merit. In my judgment the duty relied upon simply does not exist. An immigration officer and a Home Office official must listen fairly and act in good faith, but neither is under any duty to point out the legal effects of a defective stamp in a passport, no question having been addressed to him which might reasonably be said to call for that explanation. Furthermore, the quasi-estoppel point was not raised before the adjudicator or before the Tribunal and it is too late to raise it now. Mr Gill of course now accepts that even if there were a representation which he could rely upon, that could not affect the operation of the statutory provision set out in section 3(4), but his real problem is that there is no representation of existing fact upon which he can rely. The second ground on which he seeks relief is conceded. Mr Jay accepts, in my view rightly, that the Tribunal was wrong in holding that the applicant had no right of appeal to an adjudicator. He had a right of appeal by virtue of section 14(1) of the 1971 Act, but the question remains as to whether the appeal was one which had any real prospect of success, and that brings me to the third ground for relief on which Mr Gill relies. As the case is factually similar to the case of Acquah, Mr Gill adopted the four propositions of Mr Macdonald which I have already considered in dealing with Acquah's case, including the fourth proposition which seeks to involve the Secretary of State. In this case also, having listened to what has been said, I refuse to grant the leave which is necessary if the Secretary of State is to be involved at this late stage, but, as in the case of Acquah, I accept the first proposition that on 6 January 1983 the stamp placed upon the passport of this applicant was so defective that he must be deemed to have received indefinite leave to enter. I also accept the second proposition, namely that on 7 January 1984 the applicant was entitled to admission for settlement as a returning resident. As to the third proposition, that the claim to be treated as a returning resident can be raised after entry that, as it seems to me in the light of Coomasaru, must depend upon what was the state of mind of the applicant at the time of entry. If he was not then wanting to be admitted for settlement he cannot rely on paragraph 56 of HC 169 at any later stage, and here it does seem to me that it was open to the adjudicator and to the Tribunal to find, that at the material time the applicant was not wanting to be admitted for settlement. Certainly that is what was found in relation to the entry on 30 November 1984, and although there does not seem to be an expressed finding in relation to the entry on 7 January 1984 I can see nothing to indicate that the applicant was seeking admission for settlement at that time. Accordingly, this application also fails and is dismissed. Finally, I should make it clear that although on more than one occasion in the course of this judgment I have relied on what was said by the Master of the Rolls in Coomasaru, Mr Laws has not put to me the argument advanced by Mr Brown in that case, namely that there can be no complaint about a failure to apply paragraph 56 of HC 169 correctly if the immigrant at the time of entry did not ask for that to which he was entitled. In order to deal with these applications it has not been necessary for me to decide whether or not that is the case.

DISPOSITION:

Orders accordingly

SOLICITORS:

Sturtivant & Co London W1 (for Tolba), Hackney Law Centre (for Bettancourt), Graham Peries & Co London E8 (for Akinsanmi), Winstanley-Burgess, London EC1 (for Acquah and Rahman), Bindman & Partners London NW1 (for Gonzales-Rojas); Treasury Solicitor.

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.