Abiola Ayoola v. Secretary of State for the Home Department

ABIOLA AYOOLA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 170

Hearing Date: 5 November 1991

5 November 1991

Index Terms:

Student -- refusal of leave to enter during currency of earlier leave -- condition attached to that leave -- appellant not to engage in business without permission -- appellant had purchased "off the shelf" company to facilitate export of goods to friends in Nigeria -- whether he had been engaging in business -- whether students as well as visitors could transact business without breaching the immigration rules. HC 251 paras 24, 26, 109.

Held:

Appeal from the Divisional Court which had refused judicial review of an immigration officer's decision to refuse the appellant leave to enter the United Kingdom. The appellant was a citizen of Nigeria who had spent some years in the United Kingdom as a student: it was accepted he had attended courses which satisfied the immigration rules. His leave as a student was subject to the condition, inter alia, that he did not engage in business except with permission. He went abroad for a short period during the currency of his leave. On his return he was refused leave to enter. The immigration officer found he had a business card and he admitted that he had purchased an off the shelf company to facilitate the export to Nigeria of goods which friends and acquaintances had asked him to send to them in Nigeria. The immigration officer concluded that the appellant had breached the condition attached to his earlier leave, in that he had engaged in business without permission. Before the court counsel sought to distinguish between engaging in business and transacting business, which visitors were specifically authorised to do, as visitors. Counsel argued that in that regard the position of a student was analogous to that of a visitor. Held: 1. On the admitted facts, the immigration officer was entitled to conclude that the appellant had been engaging in business. Per the Master of the Rolls, "You simply do not buy an off the shelf company if you are merely doing the odd piece of business". 2. It was not possible to define the difference between "engaging in business" and "transacting business": that was a question which would have to be resolved on the facts of each individual case. 3. Per Nourse LJ, it was arguable, but best left for decision in a case in which the point arose, that students were not permitted, as were visitors, to transact business: the court's judgment should not be taken as encouraging students to transact business.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Abiola Ayoola (unreported, QBD, 25 March 1991).

Counsel:

A Riza QC for the appellant; N Garnham for the respondent PANEL: Lord Donaldson MR, Nourse, Butler-Sloss LJJ

Judgment One:

LORD DONALDSON MR: In this case Mr Riza appears on behalf of Mr Ayoola, seeking leave to apply for judicial review with a view to quashing a decision by an immigration officer refusing Mr Ayoola leave to enter this country on 1 October last year. The position is this. Since (I think it is) 1981 Mr Ayoola has been resident in this country on a series of leaves with a view to studying as a student. In view of the experience of this court with students who either have not the slightest intention of studying or seem to have a remarkable facility for enrolling in schools who teach only immigration law and ways round the immigration rules, it is fair to stress that in Mr Ayoola's case on all the evidence he was a completely genuine student who had attended at completely genuine schools. That he should have spent 10 years studying without apparently getting anywhere other than acquiring a large number of qualifications is not a matter for which he should be criticised, at least in an immigration context. Mr Ayoola's passport set out what were the terms of the leave which he had. It was a leave which expired on 6 October 1990 and it was subject to the condition "that the holder does not enter or change employment paid or unpaid without the consent of the Secretary of State for Employment, and does not engage in any business or profession without the consent of the Secretary of State for the Home Department". The relevant words are "does not engage in any business . . . without the consent of the Secretary of State for the Home Department". Mr Ayoola left this country in the summer of 1990 for a short visit to Nigeria and on his return he no doubt expected that he would be permitted to enter and remain until the expiration of his leave. And so he would have done but for the fact that the immigration officer formed the view that he was in breach of that condition. What Mr Ayoola says in paragraph 13 of his affidavit is this: "On arrival on 1 October 1990 I was interviewed by an immigration officer and asked a number of questions about what I was doing in the UK. I explained I was a student and that I was studying and that I had leave to remain. When the immigration officer saw that I had a business name card he refused me leave to enter." Two days later he received a formal refusal notice, the grounds of his refusal being that he had not observed the conditions imposed on his grant of leave to enter and that the immigration officer was not satisfied that he was a genuine student. So far as the latter point is concerned, nothing really turns upon it. The judge below regarded it as a bit of makeweight and I agree. The real question here is whether the immigration officer had reasonable grounds for believing that Mr Ayoola was engaging in business contrary to the rule. Mr Ayoola had himself, in my view, largely made good the suspicions of the immigration officer because in paragraph 10 of his affidavit he explains how it came that he had a business card: "During 1989 some people were coming from Nigeria and I bought some things for them and sent them to them. But they had sent the money to me and I bought the items. I bought an "off the shelf" company called Eaglemart Limited in order to process this. I registered with the Business Centre for 'phone calls to be taken so that if anyone wanted anything, I could buy it and ship it out for them. I used to go and collect my post and messages from there after classes. It was just me doing it and I did it for friends and acquaintances." I cannot see anything unreasonable in an immigration officer taking the view that this amounted to engaging in business. You simply do not buy an off the shelf company if you are merely doing the odd piece of business. This must be within the phrase "engaging in any business'. Mr Riza draws our attention to rule 24 of the House of Commons Paper 251 which says: "Passengers admitted to the United Kingdom and visitors are free to transact business during their visit. Those wishing to establish themselves in business or self employment must, however, comply with paragraphs 41 to 43." Mr Riza says that it is arguable that Mr Ayoola was simply transacting business in the sense in which visitors are free to transact business and, whilst the rules do not in terms say that a student can transact business, there is obviously much to be said for the proposition that a student is merely a specialised form of visitor who has a slightly longer leave than the ordinary visitor and that he is free to "transact business". He says that we ought to grant leave in order that we might define what is the difference between transacting business and engaging in business. For my part, I do not think that one can define it. It has got to be dealt with on a case by case basis. But there is in fact a world of difference between a visitor coming to this country and making contracts with United Kingdom businesses, either to buy or sell, and going away again. This is transacting business. Engaging in business seems to me to be quite clearly setting up a new business or taking part in an existing business in this country. When somebody is resident here and transacts business to a degree which renders it appropriate to set up an off the shelf company, it seems to me that the view can without doubt be taken that he is engaging in business. So I get back to the point at which I started. My Ayoola seeks to quash the immigration officer's decision as being Wednesbury unreasonable. Whatever else it was, it does not seem to me to have been Wednesbury unreasonable and I cannot see that this point is arguable. Accordingly, I would refuse leave.

Judgment Two:

NOURSE LJ: I agree. It is perfectly clear that the immigration officer was entitled to conclude, on the basis of what is said in paragraph 10 of Mr Ayoola's affidavit, that he was engaging in a business, contrary to one of the conditions on which leave to enter was granted. Not only had he bought an off the shelf company; as the immigration officer himself remarked, he had a business card, which presumably was available for circulation amongst his friends and acquaintances and no doubt others as well. I only wish to add this. For my part, I would not wish to give any encouragement to the suggestion that a student who gets leave to enter subject to a condition such as this may be able to say that it has not been breached simply because he has been transacting business as opposed to engaging in business. It seems to me that rule 24 is part of a code dealing with visitors only. It may well be arguable that a student who transacts business does in fact engage in business for the purposes of a condition such as this. This is a point on which I would not wish to express a view unless and until it arose for decision.

Judgment Three:

BUTLER-SLOSS LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co; Treasury Solicitor

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