R v. Immigration Officer, Ex parte Nikhat Ali

R v AN IMMIGRATION OFFICER Ex parte NIKHAT ALI

Queen's Bench Division

[1982] Imm AR 1

Hearing Date: 13 January 1982

13 January 1982

Index Terms:

Appeal -- Appellant left United Kingdom voluntarily pending hearing of appeal -- Whether entitled to re-enter without leave for purposes of the appeal -- Immigration Act 1971, ss 3(4), 14(1).

Held:

The applicant, a citizen of India, was granted entry as a visitor for three months on 29 January 1981. On 27 April 1981 she applied for indefinite leave to stay. The application was refused and when she appealed to an adjudicator against this decision she was told that she would not be required to leave so long as her appeal was pending. However she left voluntarily on 2 June 1981 and on her return was refused leave to enter. Held: That under s 3(4) of the Immigration Act 1971 a person in the circumstances of the applicant was not entitled to re-enter without leave unless he/she sought re-entry within the period of his/her previous leave.

Counsel:

A. S. Qureshi for the applicant. John Laws for the respondent. PANEL: Woolf J

Judgment One:

WOOLF J. This is an application for judicial review in respect of a decision of an Immigration Officer to refuse the applicant leave to enter the United Kingdom. That decision was given on the 6th July 1981. In order to understand the point that is taken by Mr. Qureshi, who has put his argument clearly and succinctly on behalf of the applicant, it is necessary to recite something of the history of this matter. The applicant is a citizen of India. She was married to Mr. Mir Mahmood Ali, and for the purposes of this application it is not necessary for me to indicate any view as to whether or not she is still married to that gentleman. She came to this country, first of all, on the 29th January 1981, and on that occasion she sought leave to enter the country as a visitor. She was given leave to enter for a period of three months. It could be said that her application to enter on that occasion was less than frank because it now appears that her real reason for wanting to come to this country was that she wanted to live with her husband, who was already here. If her application to enter was less than frank it is also right I should say that that probably was through no personal fault of hers. It was because of wrong advice that she received when she was planning to enter the country on that occasion. In any event, that matter does not affect the outcome of this application. All I am concerned with is the undisputed fact that she got leave to enter for a period of three months. During the continuance of that leave she applied to stay here for settlement. She asked for the condition limiting her right to remain in this country for a period of three months to be varied so that she had indefinite leave to stay. That application, which was made on the 27th April 1981, was refused on the same day. Within the time limit for doing so she appealed, on the 7th May 1981. The appeal was properly laid under section 14 of the Immigration Act 1971. When the Secretary of State refused her application, which led to that appeal, he did give her a short extension to enable her to pursue what rights she had. That appears from the decision, which is to be found at page 18 of the respondent's bundle, which makes it clear that her stay was extended to the 25th May 1981. Having appealed, a letter was written to the applicant by the Secretary of State which indicated that she would not be required to leave the United Kingdom while her appeal was pending. As her appeal is still pending, if she had not herself left the United Kingdom there could be no doubt that she would have been entitled to remain here pending the outcome of her appeal. However, she had to leave on the 2nd June 1981, and having done so, it was on the 25th June 1981 that she returned and was refused leave. The grounds on which she was refused leave are to be found at page 29 of the bundle. They are in those terms. The document is dated 6th July 1981, because between the 25th June and the 6th July the Secretary of State looked into the matter further. The document is addressed to the applicant and says: "You have asked for leave to enter the United Kingdom as the wife of Mir Mahmood Ali but I am not satisfied that he is able and willing to maintain and accommodate you. I addition, I have reason to believe that on 29.1.81 you obtained leave to enter by deception. Furthermore, you do not hold a current entry clearance granted to you for the above purpose." As Mr. Qureshi rightly points out, there are three separate grounds given for that refusal to leave to enter. I do not need to consider those grounds of refusal further, because Mr. Qureshi has limited his submissions to me to two submissions on a point of law dependent on the interpretation of the Immigration Act 1971. He relies on the fact that the applicant was given by the Secretary of State leave to remain in this country until the appeal was determined and the fact that section 14 of the Immigration Act specifically deals with persons who appeal under that Act. The section says: "... nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leavel so long as his appeal is pending under this subsection against a refusal to enlarge or remove the limit on the duration of the leave." Mr. Qureshi submits that his client falls within that wording, and therefore this is a case where she is entitled to be in this country. I am afraid that Mr. Qureshi is wrong in that interpretation of section 14(1), because all that it does is to prevent the removal of someone pending the outcome of the appeal. If she chooses to leave the country voluntarily then section 14(1) gives her no right to re-enter. She must again obtain leave. However, in addition to section 14(1) Mr. Qureshi relies upon section 3(4) 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 (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." Quite apart from anything else subsection (4) makes it clear that if a person had leave, then the leave would lapse in the normal way if she went outside the common travel area, which is what the applicant did. I say "if a person had leave" because of course by the date we are concerned with the leave which had been given to the applicant and already expired. All that is said here is that she is not going to be removed, which is consistent with section 14(1) which does not give this leave. However, even assuming that she had leave in the normal way, the effect of section 3(4) is for that leave to lapse. Mr. Qureshi relies on the qualification in subsection (4), but in my view he is not entitled to do so, because although she returned to the United Kingdom she did not do so in circumstances where she was not required to obtain leave to enter. She did require leave to enter, and so she does not fall within that qualification. Although Mr. Qureshi put the arguments as clearly and as succinctly as they could possibly be put on behalf of the applicant I am afraid I must dismiss the application because the arguments are wrong in law. It follows therefore that the applicant is not entitled to any relief.

DISPOSITION:

Application dismissed.

SOLICITORS:

Messrs Davies Donovan & Co: Treasury Solicitor.