Kuku v Secretary of State for the Home Department
Court of Appeal (Civil Division)
 Imm AR 27
Hearing Date: 28 September 1989
28 September 1989
Visa national -- left United Kingdom during currency of student leave -- refused leave to enter on return before earlier leave would have expired -- not in possession of visa -- whether refusal lawful -- whether earlier leave had lapsed -- whether paragraph 24 of HC 169 would permit her to be re-admitted -- whether on the facts, the appellant had a legitimate expectation that she would be re-admitted. Immigration Act 1971 ss 3(1), 3(3)(b), 3(4), 33: HC 169 (as amended) paras 10, 21-26.
Held:Appeal from Macpherson J who had dismissed an application for judicial review. The appellant was a Nigerian citizen who had had leave to study in the United Kingdom. She left the country for a visit abroad: on her return she was refused leave to enter, she not being in possession of a visa, as required by the rules. Before the Court it was argued that she came within the provisions of s 3(4) of the 1971 Act, and did not require leave to enter. Further it was submitted that under the provisions of paragraph 24 of HC 169 the immigration officer had a discretion to admit her without entry clearance. It was also argued that in the events which had happened, she had a legitimate expectation that she would be re-admitted if she returned before a certain date, which she had done. Held: 1. Following Ghassemian & Mirza the appellant's previous leave expired when she left the United Kingdom: she did not come within the exceptions set out in section 3(4) of the 1971 Act: it followed she required leave to enter. 2. Paragraph 24 of HC 169 had to be read in the context of the rules generally and in particular with paragraph 10. When that was done it was clear that the provisions of that rule did not override the other requirements of the rules. 3. The appellant was a visa national and without a visa she could not be admitted to the United Kingdom. 4. On the facts she had no legitimate expectation that she would be re-admitted without a visa: Oloniluyi distinguished.
Cases referred to in the Judgment:Ghassemian and Mirza v Home Office (CA of 27 June 1980)  Imm AR 42. Taj Mohd Swati v Secretary of State for the Home Department  Imm AR 88:  1 WLR 477. R v Secretary of State for the Home Department ex parte Aderimi Kuku  Imm AR 38. Adetutu Oloniluyi v Secretary of State for the Home Department  Imm AR 135. Bolanle Balogun v Secretary of State for the Home Department  Imm AR 603.
Counsel:IJ Kumi for the appellant; D Pannick for the respondent PANEL: Woolf, Nicholls, Staughton LJJ
Judgment One:WOOLF LJ: This is an appeal by Aderimi Shakirat Kuku. She is a student who has been studying here in circumstances which I will describe hereafter, and this is one of a series of appeals which deal with the problem which is created by people who have leave to visit this country for the purposes of studying leaving during the currency of their visit. If it does nothing more, the case does illustrate the fact that the Home Office practice with regard to situations of the sort that I am going to describe hereafter requires reconsideration because there is a very real danger of persons in the position of the present appellant not fully understanding the consequences of their leaving the country for a short visit abrod. The appeal is against the decision of Macpherson J given on 27 September 1988 refusing judicial review in respect of a decision of an immigration officer who, on 18 August 1987, refused the appellant leave to enter when she returned to this country, the grounds of refusal being short and succinct: "You have sought leave to enter the United Kingdom as a student for five months but you hold no current United Kingdom visa." The appellant was born in Nigeria, of which country she is a citizen, on 27 July 1963. She was granted leave to enter this country as a visitor for a period of six months on 21 September 1987. During the currency of her leave she applied to have her leave to enter as a visitor for six months varied to enable her to study in the United Kingdom. The application was made on 18 March 1987. On 10 July 1987 the appellant wrote to the Home Office a letter which is in rather unusual terms. It is not quite clear what was meant by that because she wrote to the Home Office: "I would like to apply for re-entry visa to Nigeria. I have already sent in my passport, school receipt and bank statements . . . The reason why I am applying for early visa is due to the fact that I wish to travel to Nigeria on date 22/7/87 as the school is now on break and going to resume in September" -- and I cannot read the date. Presumably, although she in that letter says "I would like to apply for re-entry visa to Nigeria", what she meant was that she was seeking to apply for a re-entry visa to this country having visited Nigeria, and it was just a slip of the pen in wording the matter in the way that she did. The explanation for her writing a letter of that sort would be the fact that, as will appear hereafter when I refer to the relevant immigration rules, on 1 February 1987 Nigeria became a country where in all normal circumstances citizens of that country seeking to visit this country required a visa in order to do so. If I rightly interpreted the letter which was written by the appellant she was aware of this change of situation to which of course considerable publicity was given at the time and which was a matter of some concern to many Nigerians. On 22 July 1987 the appellant went to Lunar House to the Immigration Department and sought the return of her passport and she was then given her passport back, but she was given an extension of her leave to remain in this country until 19 August 1987. She then left the United Kingdom but returned on 18 August 1987, one day before the leave which had been given on 22 July 1987 expired, and it was when she returned on that date that she was refusd leave to enter. She was given admission to this country notwithstanding the refusal of leave to enter to enable her to make an application for judicial review, and that application for judicial review was lodged on 10 September 1987, and the matter has then been proceeding to this court since that time. As she was only seeking leave to enter this country for a period of five months it might be thought at first glance that this was only an appeal which was dealing with some matter which was purely academic with no practical implications. But Mr Kumi, who has appeared and argued the matter most ably on behalf of the appellant, points out that in fact if she had been granted the initial period of leave to study then that could have been the subject of further applications to renew so as to enable her to complete her study, and in fact her studying is not yet completed and indeed there is a late affidavit which was not before the learned judge dealing with that aspect of the matter which this court has seen, showing the progress that she has made to date in her studies. They are largely of a secretarial nature, and it would be fair to say that she has not excelled as a student, but it does seem that she has been regularly attending her studying and has made some progress. On this appeal Mr Kumi has advanced three arguments on behalf of the appellant for saying that the learned judge was wrong in his decision. The first argumet turns upon the provisions of the Act and it will be convenient if I now refer to the relevant provisions of the Act and the Rules which have been canvassed on this appeal. Section 3(1) of the Immigration Act 1971 states: "Except as otherwise provided by or under this Act, where a person is not [a British citizen] -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act". That provision is explicit. It clearly applied to Miss Kuku, and there really is no dispute before us that she was someone who would require leave to enter the United Kingdom. Subsection (3)(b) of section 3 provides: "In the case of a limited leave to enter or remain in the United Kingdom, -- (a) . . . (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." That subsection has to be considered together with subsection (4) which is relevant with regard to the first submission made by Mr Kumi which is in these terms: "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 ( . . . ), 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" The only other provision of the Act to which I need refer at this stage is section 33 which is the definition section, and which defines "entry clearance" as meaning "a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person's eligibility, though not [a British citizen], for entry into the United Kingdom (but does not include a work permit)"; "entry clearance" is to be contrasted with "leave" because it does not provide a person with leave, it only deals with the person's eligibility for leave to enter this country. There is a definition of "limited leave" and "indefinite leave" also contained in section 33: "'limited leave' and 'indefinite leave' mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration". The immigration rules which are relevant and which apply in this case are the immigration rules HC 169 as subsequently amended. Rule 10 appears in section one, Part I, Introduction, and is in these terms: "The foreign nationals and Commonwealth citizens specified in the Appendix, stateless persons, and other holders of non-national documents (who are collectively described in these rules as 'visa nationals') must produce to the immigration officer a passport or other identity document endorsed with a United Kingdom visa issued for the purpose for which they seek entry, and should be refused leave to enter if they have no such current visa." The appendix to the rules has been amended from time to time and the consequence of those amendments is that as from 1 February 1987 Nigeria is included in the appendix, but included in a way which is subject to a qualification and the qualification reads so far as it applies to Nigeria as follows: " . . . Nigeria other than: (a) . . . (b) those who seek 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 on or condition of that earlier leave applies to the subsequent leave." In addition to rule 10 it is necessary to look at part of HC 169 which deals with students. They are rules 21 to 26 and come in part II of the rules which is headed "Passengers Coming for Temporary Purposes". Part II is prefaced by a paragraph in heavy print which, so far as relevant, reads as follows: "Part II of these rules deals with admission for temorary purposes . . . In all cases admission is subject to the possession of a valid current entry clearance where that is required by these rules". Rule 24 of the rules dealing with students is the most important one. It provides: "A passenger who holds a current entry clearance, or who can satisfy the immigration officer that he fulfils the requirements of paragraphs 21-23, may be admitted for an appropriate period depending on the length of the course of study and on his means, with a condition restricting his freedom to take employment; he should be advised to apply to the Home Office before the expiry of his leave to enter for any extension of stay that may be required. A passenger who satisfies the immigration officer that he has genuine and realistic intentions of studying in the United Kingdom and that he intends to leave the country on completion of his studies but cannot satisfy the other requirements of paragraphs 21-23 may be admitted for a short period, within the limits 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. Otherwise a passenger arriving without an entry clearance who is seeking entry as a student is to be refused admission." While considering that rule it is appropriate to point out that it clearly envisages circumstances where although a passenger who wishes to study has not a current entry clearance the immigration officer should be able, in the appropriate circumstances, to grant leave to enter. The first submission of Mr Kumi is that the learned judge was in error in that he followed a case of Ghassemian, and in so doing misconstrued section 3(4) of the Act, whereas that case was distinguishable and it only applied where a visa was a sine qua non to obtain re-entry; whereas, so it was argued, in the circumstances of this case rule 24 of HC 169 indicated that it was not necessary in all circumstances to have a visa. In my view this argument of Mr Kumi is misconceived. Looking at the language of section 3(4) first of all, that language is clear and explicit. It deals with what happens to an existing leave to enter or remain in the United Kingdom if the person who is granted that leave departs from the country, and it says that in those circumstances the leave is to come to an end. Mr Kumi advanced his argument on the words which appear in the subsection which say: " . . . 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". Mr Kumi says that his client had leave to enter. That leave had been extended from the date on which it was given to enable her to make a visit abroad, and the fact that that had happened meant that she had leave in effect to return. In my view, indeed as was pointed out by Staughton LJ in argument, if this interpretation was correct it would really deprive subsection (4) of all effect. It would mean the subsection is abrogated, because it is clearly designed to bring to an end a leave which has already been given so that a person who has previously entered the United Kingdom cannot rely on that leave if he wishes to re-enter again subsequently. The passage in the rule to which I have just referred is dealing with exceptional situations where no leave is in fact required to enter the United Kingdom. It is dealing with special categories, examples of which are crews of ships and diplomats, and it is not dealing with a situation which applies here. That was the view of the section which was taken by the Court of Appeal in the case of Ghassemian and Mirza which is now reported, belatedly, in the Immigration Appeal Reports for 1989 at page 42. In that case, in language more eloquent than I have used, Bridge LJ dealt with a similar submission and came to the same conclusion as I have sought to express a moment ago. Rule 24 is of no assistance to Mr Kumi. Whatever the effect of rule 24 is, it does not deal with the question of the validity of any previous leave which has been given. It deals with the granting of leave, and does not deal with the continuation of an earlier leave. So the decision of the Court of Appeal and the judgment of Bridge LJ in the earlier case cannot possibly be distinguished on the basis of rule 24. I turn, therefore, to the next argument which is advanced by Mr Kumi. This argument turns on the effect of rule 24. Mr Kumi submits that if you look at the language of rule 24 it specifically indicates, as I have said earlier, that there are circumstances where an immigration officer can grant leave, although the immigrant does not have a current entry clearance which expression includes a "visa". I agree that if rule 24 is looked at alone then it does indeed have the consequence for which Mr Kumi contends, and therefore if the rule alone was to be applied by the immigration officer he was in error in refusing the appellant leave to enter solely on the basis that she did not have a visa. However, in my view rule 24 has to be looked at within the context in which it is set in the rules as a whole. In particular, in my view, rule 24 has to be read subject to the rules which are contained in the Introduction to the section which contains Parts I and II, and subject to rule 10 and the preface to Part II which I have cited. In order to understand the rules it has to be appreciated that in the various parts they seek to deal if not with every category, then certainly with the vast majority of persons, who are coming to this country who need leave to enter. For example Part II deals with passengers coming for temporary purposes. The rules within Part II are specific to persons coming for temporary purposes, and those persons are subject to those rules, but they are also subject to the rules contained in the introductory part which is Part I. The reason why rule 24 deals with persons who hold current entry clearance and persons who do not have current entry clearance is because it is always possible, irrespective of whether or not there is an express requirement to have entry clearance, for someone who is abroad to obtain entry clearance before they come to this country. They will then be in the beneficial position that the basis upon which the immigration officer can refuse leave to enter is restricted by rule 13, and what is more they will not be subject to the limitation on their rights of appeal against an adverse decision of an immigration officer which normally apply which require the immigrant to leave this country and appeal from abroad if they wish to challenge the immigration officer's decision in accordance with section 13 of the Immigration Act 1971. It follows, therefore, that this second submission of Mr Kumi is one which I would reject. This lady did require leave. She was subject to rule 10. She did therefore require a visa. She did not have a visa, and in my view -- subject to what I have to say in relation to the third submission -- the immigration officer's decision to refuse her leave to enter in the terms which he did cannot be challenged. The third argument which was advanced by Mr Kumi is the one that has caused this court the most concern, and it is an argument based on the fact that the appellant now says that she was given a legitimate expectation to believe that if she left this country for the short period she did and returned during the currency of her existing leave then she would be admitted to this country. I have already made reference to the fact that this lady was aware, or appears to have been aware, of the visa requirement which applied to Nigerians. She says in her affidavit (and I quote from paragraph 5 of that affidavit) that: "I was verbally assured by the Home Office that as long as I returned to the Untied Kingdom within the currency of my original leave to enter as a visitor and as my application for variation of status from that of a visitor to that of a student was already before them, I should not have any difficulties when returning. I had to return before the 19 August. Relying on that assurance, I left for Nigeria for the summer holidays and I made sure that I returned to the United Kingdom before the 19." Then she says that in fact she arrived on the eighteenth, and she says that having regard to that assurance the decision of the immigration officer to refuse her entry should be set aside because it would be unfair and indeed one which would be wrong for the immigration officer to rely on, because clearly he did not take into account in coming to his decision the assurance which she had been given. If he had done so, it is contended, then he would have come to a different decision. With regard to this contention it is necessary to refer to the evidence which was filed on behalf of the Home Office. That evidence was first of all by a Mr Larking. He is an Administrative Officer in the Public Enquiry Office of the Home Office, and he says it is part of his duties to deal with enquiries by persons who visit the Department. He says he has looked at a copy of a call note and noted the particulars of the applicant's enquiry. He says that he cannot remember the particular case, and he says that he has looked at the affidavit of the appellant and he is aware of what she asserts. He says: "It is my normal practice to inform citizens of countries who require visas that they do require a visa to return to the United Kingdom, and that the visa must be obtained from a British Embassy or High Commission abroad. Indeed, I take particular care to ensure that a caller has understood this requirement before the caller leaves." Quite clearly if Mr Larking followed his normal practice then the legitimate expectation argument on behalf of the appellant falls to the ground. It is unfortunate that there is, implicitly at any rate, a clear conflict in recollection between the appellant and Mr Larking to this extent: Mr Larking is suggesting to the court that he must have followed his normal practice in this case, and the appellant is putting forward a case which is inconsistent with that normal practice. Indeed it is to be pointed out that it is very desirable that an administrative officer, performing the duties that Mr Larking performs, should follow the practice which he indicates. However, again speaking for myself, I would suggest that in addition to that practice it is highly desirable that a document should be handed to a person seeking the return of his visa and that document should be attached to the passport so that there can be no question of there being any misapprehension. If a person is handed back a passport with an extension of leave, unless they are aware of the consequences of section 3(4) of the Immigration Act 1971 it is all too easy for them to think that they have an entry which will cover a short visit abroad. It is, in my view, undesirable that the effectiveness of warning an immigrant about the consequences of leaving should be left to the administrative officer remembering to tell the immigrant of the situation. It would be preferable that something more positive is done of the sort that I indicate, and I hope that, bearing in mind this is now one of a series of cases which has come before this court, the Home Office will look at the practice which Mr Larking says that he followed. Mr Larking then goes on to say: "In certain exceptional circumstances I would be authorised to enable persons to return to the United Kingdom without the need for a visa. However, it would be necessary for the passenger concerned to have obtained an extension of leave to remain for a period of at least 3 months before such an exemption could be granted. In order to facilitate the passenger's return it would be necessary to endorse the passenger's passport with certain stamps to that effect. Thus, if I had given an undertaking of the nature suggested by the applicant, one would expect to find a 'Section 3(3)(b) enabling stamp' and a 'visa exemption stamp' endorsed in the Applicant's passport, in addition to a grant of an extension of leave to remain of at least 3 months. I am informed and verily believe that the Applicant's passport contains no Section 3(3)(b) enabling stamp nor visa exemption stamp. Moreover I can confirm that the extension of leave to remain which I granted to the applicant was for a period of 28 days only. In the circumstances I am confident that no such assurance as alleged by the applicant wsa given", He then exhibits the sort of stamp that he describes. He then goes on: "This is the normal Home Office procedure when a caller who has made an application for variation of leave within the currency of an existing Leave to Enter requests the return of his or her passport for the purposes of travel, but the consideration of the passenger's application on its merits has not been completed. If the extension of leave to remain were refused, the passenger would in any event obtain 28 days leave to remain by virtue of the Immigration (Variation of Leave) Order 1976 . . . Accordingly an equivalent period of leave to enter is granted." In that passage the officer is explaining why it is the practice to give 28 days, albeit that the immigrant says that he or she is proposing to travel immediately. That practice of giving 28 days even in those circumstances is relevant because the note which the officer kept indicates that undoubtedly the appellant did tell him that she was travelling tonight and returning. The only other relevant material which is before this court as to the conflict between the appellant and Mr Larking as to what happened is that of the immigration officer who dealt with the appellant when she came back to Heathrow. In his affidavit he says that "at no stage during our interview did the applicant say this to me; and there is no endorsement by the Home Office in the applicant's passport to that effect." This is referring to the assurance which the appellant says she was given by the Home Office. In his submissions Mr Pannick says that the combined effect of Mr Larking's evidence and the evidence of the immigration officer is such that the court should reject the evidence for the purposes of this application. On an application for judicial review where there is normally no oral evidence the court has to deal with the matter on the basis that the applicant for judicial review has the onus placed upon her of satisfying the court on the balance of probabilities that the contentions she advances are right. It is because there is normally no enquiry into the facts on an application for judicial review that judicial review is not the appropriate procedure for investigating issues of fact. Those would be much more appropriately dealt with on appeal to an adjudicator under section 13 of the Immigration Act 1971. The Home Office in this case did not seek to apply in all its rigour the judgment of this court in the case of R v Secretary of State for the Home Department, ex parte Swati  1 WLR 477. When following the Divisional Court this Court indicated that in the ordinary way in these sorts of cases they are not appropriate for judicial review, but an appellant should be required to leave the country in order to appeal. However, although the appellant was not required to leave the country before appealing and it was not sought to be suggested that her application for judicial review was one which should be struck out, or any matter of that sort, the practical implications of the language of the Immigration Act in this regard are relevant. Parliament did intend in the ordinary way that immigrants in the position of Miss Kuku should have a right of appeal, but that they should exercise that appeal in accordance with the Act. If they instead apply for judicial review the court cannot do otherwise than approach the matter in the ordinary and conventional way on the material which is before the court and deal with the matter on the basis that on the whole of that evidence the case has either been proved or not proved according to the required standard. In this case I am afraid that in my view the learned judge was absolutely right to come to the conclusion that, there being this conflict, he had to accept the evidence of the immigration officer. In doing so he was not suggesting that the court always accepts the evidence of immigration officers -- of course not. He was merely saying that the appellant had not satisfied the burden of proof which was upon her on the material which was before the court, and in my view the judge was right to come to that conclusion. I would therefore regard this argument as being misconceived. I should, however, point out that there have been two other cases where similar arguments have been advanced. Those are the cases of Oloniluyi v Secretary of State for the Home Department  Imm AR 135 where this court, presided over by Lord Donaldson, did in fact come to the conclusion that the legitimate expectation submission should succeed. That case was in fact different on the facts from this case because in that case there was no conflict in the evidence of the sort that I have indicated, and furthermore there was a section 3(3)(b) endorsement on the passport (which of course was not the situation here) which altered the position. The other case to which we were referred is the case of R v Secretary of State for the Home Department, ex parte Bolanle Balogun. That was a case which was before this court on 25 July of this year. That case is again one which was distinguishable because there was a section 3(3)(b) stamp. However, in that case the application was dismissed, though it is relevant to point out that in his judgment Neill LJ emphasised something which I have sought to emphasise, namely that a person who leaves this country (he was there referring to the stamp under section 3(3)(b) in his or her passport) should be left in no doubt whatever that if he or she returns he will require leave to obtain entry. The points which were in issue in that case were different from those which were in issue here, but that case is in no way inconsistent with the views I have expressed. Accordingly, apart from acknowledging the assistance which the court has received both from Mr Kumi and Mr Pannick, there is nothing which I can add. In my view this appeal should be dismissed.
Judgment Two:NICHOLLS LJ: I agree, and I add only a brief observation on the second of the three grounds relied on by Mr Kumi. I refer to his submission that the applicant was entitled to leave to enter under paragraph 24 of the immigration rules set out in HC 169 of 1983, even though she did not hold a current entry clearance certificate. He submitted that under paragraph 24 the applicant had available to her a route to obtain leave to enter, even though she did not hold such a certificate, for example, if she satisfied the immigration officer that she fulfilled the requirements of paragraphs 21 to 23. I do not think that this is a correct reading of the rules as a whole. Paragraph 24 does indeed, as my Lord has pointed out, envisage that leave to enter as a student may be granted in circumstances where the passenger does not hold a current entry clearance certificate. But I do not think that the provisions in paragraphs 21 to 24 regarding entry to study in the United Kingdom detract from the requirements of paragraph 10 in the case of a foreign national to whom that paragraph applies. That this is so is, in my view, made clear by the statement printed in bold type at the foot of Part I of section 1 of the rules. That statement indicates briefly what is the subject-matter of Parts II to V. I observe in passing that paragraphs 21 to 24 are within Part II. The statement then continues: "In all cases admission is subject to the possession of a valid current entry clearance where that is required by the rules and to the passenger being acceptable under Part IX". In my view this passage leaves no room for doubt on the point. The applicant, as a Nigerian citizen, is a foreign national to whom paragraph 10 applies. She did not and does not hold a United Kingdom visa. Accordingly the effect of paragraph 10 in her case was that leave to enter was to be refused. I too would dismiss this appeal.
Judgment Three:STAUGHTON LJ: I agree with both the judgments that have been delivered.
SOLICITORS:Iqbal & Co; Treasury Solicitor
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