Bolanle Balogun v. Secretary of State for the Home Department

Bolanle Balogun v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1989] Imm AR 603

Hearing Date: 25 July 1989

25 July 1989

Index Terms:

Visa nationals -- meaning and effect of "visa exempt" stamp linked to s 3(3)(b) stamp in passport -- appellant refused leave to enter on return to United Kingdom during currency of earlier leave -- whether appellant had right of appeal while in United Kingdom -- whether 'visa exempt' stamp the equivalent of entry clearance. Immigration Act 1971 ss 3(3)(b), 13(3), 33(1): HC 169 paras 10, 12 (as amended by HC 503), 13: Cmnd Paper 9914 (of 15 October 1986).

Held:

Appeal from Simon Brown J. The appellant was a Nigerian citizen who had been granted leave as a student. He left the United Kingdom during the currency of his leave, and his passport was endorsed with a section 3(3)(b) stamp and a 'visa exempt' stamp. On his return to the United Kingdom he was refused leave to enter. On application for judicial review it was argued that a visa exempt stamp was the equivalent of an entry clearance and the appellant accordingly had a right of appeal against that refusal of leave, while in the United Kingdom. The learned judge at first instance dismissed the application. He rejected however the submission on behalf of the Secretary of State that on a true interpretation of section 33(1) of the 1971 Act, only a letter of consent was equivalent to an entry clearance or visa. He also held that a visa exempt stamp was no more than a declaration of the provisions of the rules that in certain circumstances citizens of Nigeria and some other countries did not require visa, albeit they were generally 'visa nationals.' Held: 1. A 'visa exempt' stamp was to be distinguished from a re-entry visa. The visa exempt stamp simply recorded the fact that a person was not subject to the disqualification for entry which lack of a visa would otherwise have imposed. 2. It followed it was not the equivalent of an entry clearance or a visa. 3. Obiter, per Ralph Gibson LJ, the submission rejected by the learned judge at first instance was probably correct: "I do not think that the words 'other documents' . . . [in section 33(1) of the 1971 Act] . . . can apply to any document unless it is one 'which in accordance with the immigration rules is to be taken as evidence of a person's eligibility' . . ." Obiter, 4. Leave had been granted ex parte on the assertion that the appellant had not a 'visa exempt' stamp in his passport, but a re-entry visa. This was a case in which the respondent might have considered applying for leave to be set aside, once the true facts had been established.

Cases referred to in the Judgment:

R v Entry Clearance Officer, Bombay ex parte Amin [1983] 2 AC 818: [1983] 3 WLR 258: [1983] 2 All ER 864. R v Secretary of State for the Home Department ex parte Vivekanadan (unreported, QBD, 28 July 1988). R v Secretary of State for the Home Department ex parte Adetutu Oloniluyi [1988] Imm AR 376. Adetutu Oloniluyi v Secretary of State for the Home Department (CA) [1989] Imm AR 135. R v Secretary of State for the Home Department ex parte Bolanle Balogun [1989] Imm AR 199

Counsel:

I Kulatilake for the appellant; M Kent for the respondent PANEL: Neill, Ralph Gibson, Stuart-Smith LJJ

Judgment One:

NEILL LJ: I will ask Ralph Gibson LJ to give the first judgment.

Judgment Two:

RALPH GIBSON LJ: This is an appeal from the decision of Simon Brown J of 23 November 1988, by which he dismissed the application for judicial review made by the applicant, Mr Bolanle Balogun. The applicant is a Nigerian. He was refused leave to enter the United Kingdom on 3 February, 1988 after his arrival at Gatwick on 27 January 1988. The applicant sought the quashing of that decision of refusal and remission of his application for reconsideration. The applicant is aged 33. He first came to this country on 16 February, 1980, and was given leave to remain for one month as a visitor. He then enrolled as a student, and applied for variation of his leave. Leave was granted to remain as a student until 30 September, 1980. Then by a series of subsequent leaves substantially year by year, in 1981, 1982, 1983, 1985 down to April 1986, his leave was extended. Next, leave to remain as a student was given on 20 July 1987 to expire on 31 December of that year. The section 3(3)(b) stamp was endorsed, together with a visa exempt stamp. This case is concerned with the meaning and effect of a visa stamp. Lastly, on 14 December 1987 leave to remain as a student was granted until 30 April 1988, with the same endorsement and visa exempt stamp. The stamp reads: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before", and then in his case there was inserted the date 30 April 1988. The applicant left this country. We understand that he returned on a visit to his home in Nigeria. He returned through Gatwick on 27 January 1988. He presented his passport. In his affidavit -- no doubt prepared for him by his solicitors -- he states that his passport had a "re-entry visa" stamped on it, and that he was accordingly the holder of a current entry clearance. The statement made in that affidavit, prepared by his solicitors, has been explained on the basis that that is what he thought he had in his passport and at the time he did not have his passport to produce to his solicitors. The reason for that was that it was still in possession of the immigration authorities. In fact, it had no "re-entry visa" stamp but it did have the visa exempt stamp to which I have referred. On 3 February 1988 his application for leave was refused on form IS82C. The reasons for refusal appear at page 17 of the bundle before us: "You have asked for leave to enter the United Kingdom to continue your studies at the Academic College of Education but I am not satisfied that you can, without working and without recourse to public funds, meet the cost of the course and of your own maintenance and accommodation and that of your dependents during the course." At no time has any case been advanced that that decision was not fairly open to the immigration authorities on the material before them on the basis that the applicant needed leave to enter. The form stated that the applicant could appeal against refusal of leave, but only after he had left the United Kingdom, and reference is made to section 13(1) of the Act. Leave to apply was granted by Hodgson J on 29 March, 1988 no doubt because of the terms of the affidavit to which I have referred. On the application for leave, the relief claimed was, first, mandamus directing that the applicant be allowed to appeal while in the United Kingdom, and, secondly, an order preventing his removal until his appeal was heard. If the visa exempt stamp was in law a "re-entry visa", then it would seemingly have amounted to an entry clearance within the definition of that phrase in section 33(1) of the 1971 Act and, on that basis, under the final clause of section 13(3) the applicant would have been entitled to appeal against the refusal of leave to enter whilst remaining in this country. The application was heard by Simon Brown J. He dismissed the application. His reasoning was as follows: (1) The claim that the applicant was the holder an an entry clearance within the meaning of the Act went further than the form of the application claimed. If the applicant was, when he arrived on 27 January 1988, a "passenger who holds an entry clearance, which was duly issued to him and is still current", which he was if the visa exempt stamp was in law an entry clearance, then, by rule 13 of the Immigration Rules in HC 169, he is "not to be refused leave to enter" save the in cases listed in rule 13 which, it is common ground, are not relevant to this case. (2) The point of law was, said Simon Brown J, whether the visa exempt stamp is an entry clearance within the meaning of section 33(1), that is to say, "a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of the person's eligibility, though not a British citizen, for entry into the United Kingdom, but does not include a work permit." (3) He considered, and rejected, the submission made by Mr Kent for the Secretary of State that the visa exempt stamp could not qualify as an entry clearance within the definition because there was no provision in the immigration rules in accordance with which it is to be taken as evidence of eligibility for entry. He regarded that argument, as I understand his judgment, as "unnecessarily restrictive" of the words "other document" in the definition. He derived support for rejecting the argument from an observation of Lord Fraser in Amin v Entry Clearance Officer, Bombay [1983] 2 All ER 864 at 869G, which is also reported at [1983] 2 AC 818 at 830H. (4) He then considered and accepted the second submission of Mr Kent based upon "the true nature of a visa exempt stamp" in law. The placing of the stamp in a passport was not by way of concession from the requirement for a visa imposed upon "visa nationals" by rule 10. It was no more than a statement of the legal position. By Command paper 9914 of October 1986 a new appendix was added to HC 169. It is headed "Nationals of foreign countries who need visas for the United Kingdom". By a further amendment of January 1987, Nigeria was added after India in the list of Commonwealth countries whose citizens need visas. The effect of the change is that a national of Nigeria needs a visa unless the national in question "seeks leave to enter the United Kingdom within the period of an earlier leave in circumstances where, by virtue of s 3(3)(b) of the Act, any limitation on or conditions of that earlier leave applies to the subsequent leave." The applicant, when the visa exempt stamp was placed in his passport, was being granted an extension of leave to remain under section 3(3)(b) of the Act. The applicant accordingly did not need a visa if he returned to this country within the currency of his extension, ie down to 30 April 1988. The visa exempt stamp was, therefore, not a "re-entry visa", as the applicant had called it, nor was it an entry clearance. That conclusion was an end of the argument so far as Simon Brown J understood it, and therefore the application failed. Simon Brown J then considered two unreported decisions, that of McCullough J in ex parte Vivekanandan (28 July 1988) and ex parte Oloniluyi, a decision of Macpherson J (2 March, 1988) and Court of Appeal (18 November, 1988) (see now [1988] Imm AR 396 and [1989] Imm AR 135). He noted that in both cases it had been supposed that the visa exempt stamps were granted as concessions in place of a visa which would otherwise be required. But, nevertheless, in both cases the stamps were construed as not evidencing the applicant's eligibility for entry but as merely exempting the applicant from what was otherwise understood to have been the requirement of a visa under rule 10. The submission advanced for the applicant by Mr Kulatilake before this court in his skeleton argument was: "It will be argued that the visa exempt stamp should be treated as satisfying the requirements of Comnd paper 9914. Therefore under S 13(3) of the Immigration Act 1971 the Appellant should be allowed to appeal against the refusal of leave to enter while present in the UK." In the course of argument Mr Kulatilake acknowledged that if the basic submission he advanced is right, it is not merely a matter of being allowed to appeal in this country, but that the immigration officer should be in the circumstances have granted leave to enter. His primary submission, after it had been examined in argument, was that the visa exempt stamp meant that the person who has such a stamp in his passport is in as good a position as if he was in possession of a visa. As a result of questions put by the court, Mr Kulatilake indicated that an alternative argument might be advanced based upon a reasonable expectation, rightly to be aroused in the holder of a passport with that stamp in it, that he would have no trouble getting back into this country. But he was fully aware that his client's case -- for the original presentation of which he, of course, was not responsible -- advances no such case, and it is not therefore open to this court to consider it. On the main submission advanced, I am quite unable to accept it. In my judgment, Simon Brown J was right in his view of the meaning and effect of the visa exempt stamp. I think that in this context it is misconceived to speak of "satisfying the requirements of Command Paper 9914". That paper added a new appendix which described those countries whose nationals require to have visas. It made special provision as to when the requirement, otherwise imposed, did not apply, namely where the application is made during the existence of an existing leave. It does not in the command paper say what a visa is or what the effect is of having or not having a visa. If it were not for the existence in this case of the fact stated in Command Paper 9914, namely of this applicant "seeking leave to enter the United Kingdom within the period of an earlier leave in circumstances where by virtue of section 3(3)(b) of the Act any limitation or condition of that earlier leave applies to the subsequent leave", the applicant would need a visa. Without a visa the applicant "should be refused leave to enter" under rule 10. The visa exempt stamp records the fact that the applicant was not subject to the disqualification for entry which lack of a visa would otherwise have imposed. The stamp and the facts which justify the placing of a stamp in his passport do not remove his need to satisfy the immigration officer of any other relevant requirements of the rules. The applicant did not obtain the right, and it was never anybody's intention to confer the right "not to be refused leave to enter" under rule 13, which in his case would have been given by the presence of an entry clearance, because the exempt stamp was not an entry clearance within the meaning of the Act. It is sufficient for this case to hold that the visa exempt stamp was not within the meaning of the definition in section 33(1), because it was not, for the reasons explained, "in accordance with the immigration rules . . . to be taken as evidence of the appellant's eligibility . . . for entry into the United Kingdom." The respondent was content to rely upon the reasons given by Simon Brown J and did not question the rejection of Mr Kent's submission recorded at paragraph 3 above. For my part, I would have been disposed to hold that Mr Kent's first submission to Simon Brown J, which was not accepted, was correct in that I do not think that the words "other document" within this definition can apply to any document unless it is one "which in accordance with the immigration rules is to be taken as evidence of a person's eligibility", etc. The speeches of their Lordships in Amin's case do not, I think, say otherwise. For these reasons I would dismiss this appeal.

Judgment Three:

STUART-SMITH LJ: I agree. I would only add this, that leave to move for judicial review in this case was granted by Hodgson J on the basis of the affidavit of the applicant in which he said that his passport had a re-entry visa stamp in it and that he was advised that that amounted to a current entry clearance. That was a misapprehension on the part of the applicant and his solicitors. Mr Kulatilake has explained to this court how that misapprehension came about, because the applicant was not in possession of his passport at that time and so the solicitors could not see it. It seems to me that this might have been a case where the respondent Secretary of State might have applied to set aside the leave granted on the basis that the leave was given as a result of a misapprehension of the facts of the case.

Judgment Four:

NEILL LJ: I agree that this appeal should be dismissed for the reasons given by my Lord, Ralph Gibson LJ. I also agree with the comments which have been made by Stuart-Smith LJ as to the possibility in this case of an application to set aside being made after leave on an ex parte application had been given. I would only add this. The stamp placed on the appellant's passport was in these terms: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before . . ." This stamp on the passport was not a visa or a re-entry visa or an entry clearance or in any sense the equivalent of any of these documents. Nevertheless, I regard it as satisfactory that consideration is presently being given to making some addition to the wording of the stamp so as to make the effect of the stamp absolutely clear. A person who leaves this country with this stamp in his or her passport should be left in no doubt whatever that if he or she returns he or she will require leave to obtain entry. For these reasons given by my Lord, I would dismiss this appeal.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Graham, Peries & Co; Treasury Solicitor.