R v. Secretary of State for the Home Department, Ex parte Arjumand

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte ARJUMAND TH/95087/82

Queen's Bench Division

[1983] Imm AR 123

Hearing Date: 27 September 1983

27 September 1983

Index Terms:

Visitor -- Applied at port for entry as such -- Granted temporary admission pending hearing of appeal lodged prior to departure for United Kingdom against refusal of entry clearance for settlement -- Whether on dismissal of that appeal immigration officer entitled to refused applicant entry on ground that he was not satisfied applicant genuinely seeking entry for period stated -- HC 169 paras 17, 102, 103.

Held:

The applicant, a citizen of Pakistan, did not in 1973 take up an entry certificate to join his father in the United Kingdom for settlement. Three subsequent applications for a similar certificate were refused: his appeal against the third refusal was dismissed by an adjudicator on 27 September 1982. An appeal to the Immigration Appeal Tribunal against the dismissal was lodged on 3 October 1982 and on 28 December 1982 he and his father flew to Heathrow where he tendered a letter setting out the reasons for his coming and asking for "a six months visitor's visa". He was granted temporary admission pending the hearing of his appeal. Leave to appeal to the Immigration Appeal Tribunal was refused on 12 January 1983 and on 17 January 1983, following an interview, he was given notice of refusal of leave to enter. His application for judicial review by way of certiorari to quash that decision gave rise to the present hearing. Held: (i) There was the gravest doubt that the immigration officer was entitled to refuse the application, for entry as visitor, on the basis that it was highly likely that the applicant would apply for an extension of stay. (ii) If the immigration officer was of a mind so to refuse the application it was an injustice not to ask the applicant whether or not he would apply for an extension if it became necessary.

Cases referred to in the Judgment:

Ex parte Alexander [1982] 2 All ER 766, [1982] 1 WLR 1076, [1982] Imm AR 50, HL. Ex parte Kharrazi [1980] 3 All ER 373, [1980] 1 WLR 396, CA. Virendrakumar Patel v The Immigration Appeal Tribunal [1983] Imm AR 76, CA.

Counsel:

J Friel for the applicant; G Pulman for the respondent. PANEL: McNeill J Judgment By-1: McNEILL J.

Judgment One:

McNEILL J. This is a troublesome case. The applicant moves to quash a decision of the Immigration Officer at Heathrow dated 17 January of this year pursuant to leave granted by Woolf J on 22 February of this year, it now being 27 September. The form of the application is that the applicant seeks judicial review by way of certiorari, to bring into this court and to quash that decision, the decision being expressed to be not to allow leave to enter the United Kingdom as a visitor for a period of six months. It will immediately become apparent that nine months have passed since the decision sought to be quashed. It will also appear, in the course of this judgment, that there is, at any rate, a degree of uncertainty about what is expressed to be a period of six months. There is a short factual background which must be set out. The applicant is now 25 years of age. He is the third child of a Mr Cadri Hassan and his wife, both of whom, together with the applicant and his elder brother and sister, come from Karachi, Pakistan. The father, Mr Hassan, has been settled in this country since or about 1960. His wife lives in Karachi. His elder brother and sister are qualified as doctors and practise in Pakistan. The father's business in this country, for over 20 years, has been in travel agency and import and export business and he owns his own house in Commercial Road, London, E1. In 1973, the father went back to Pakistan and obtained from the British Embassy there, entry clearance for his wife and three children to come to the United Kingdom for settlement. However, despite the fact that that entry clearance was given, the elder brother and sister (who were studying medicine) decided that they would remain in Pakistan and their mother decided to stay with them. The applicant also remained, being then 13 or 14 years of age. There were, apparently, later applications for entry clearance for the applicant to join his father in this country which were refused. It would appear that there were three such applications over the years. The latest of those was made in January 1981. It was refused and there was an appeal to an adjudicator. The adjudicator's decision was not given until 27 September 1982. A few days after that decision, the father returned to Karachi on a visit and, while there, suffered a heart attack. Indeed, he had not been well and had travelled, it is said, against the advice of his doctor in the United Kingdom. There was then what I suppose could be called a family conference at which it was decided that, if it could be arranged, the applicant should go back to the United Kingdom with his father to wind up the father's affairs and bring the father back to Karachi to live. The applicant, in 1980 and 1981 at least, was a student at the university. For reasons which do not appear, he did not resume his classes for the 1982 session. I am not required to speculate, but the reasons (most people would think) having regard to that history, must be pretty obvious. During the father's illness in Karachi, an appeal was lodged against the dismissal by the adjudicator of the appeal against refusal of entry clearance. That appeal was lodged on 3 October 1982. On 28 December 1982, the applicant and his father flew to Heathrow. There was, as will be appreciated, outstanding an appeal against a refusal of entry clearance for purposes of settlement so far as the applicant was concerned. His father, of course, was settled and no problem arose. The applicant applied to enter the United Kingdom as a visitor and produced a letter of support, which is in the bundle now before me, from his elder brother and sister (the two doctors), in which they draw attention to the medical condition of the father. It continued: "Our father has a running business in London and has many sundry creditors and debtors. His goods are lying in London Heathrow Airport worth of Dollars 8,900 and nobody is there to clear those. In view of the above, with our consultation, he is returning to London with his youngest son" -- that is, of course, the applicant -- "who is a student of BA at Karachi, and he will appear in his examination in the middle of next year." -- That is erroneous as it now appears. -- "He is accompanying our father so that he may look after him and settle all matters with our father's customers and return to Karachi. In the meantime, our father will try to obtain permanent settlement for him, with Home Office, on compassionate and medical grounds, with recommendations of doctors there and his member of Parliament, and if he fails, our brother Mohammad Arjumand will return to Karachi, after winding up all our father's business there.

"In view of the above we request to kindly grant Mr Mohammad Arjumand a six months visitor's visa."

Once it came to the attention of the immigration officer dealing with the matter that there was a pending appeal, he gave the applicant temporary permission to enter so that the matter could be investigated. It is right to record that the applicant had on him, not only US$1,000 but also an open dated return ticket to Karachi. At that stage, the information put before the immigration officer was this. Mr Hassan, the father, who spoke fluent English, confirmed that his son was accompanying him and wished to enter the United Kingdom as a visitor for a period of five to six months, simply to help him as he was a sick man and required assistance in winding up his business affairs. He gave details of those business affairs. They were comparatively modest. Although the point has been made that the applicant was wholly inexperienced in business affairs, it would not appear that any particular expertise was required to recover those goods which had been referred to in the letter from the two doctors or in the winding up of the business interests which were a travel centre and general store and another travel agency. The father was then asserting that he was selling up or going into partnership, leaving the partner in the United Kingdom, while he returned to live in Karachi, which was the wish of the remainder of his family. The father, it was recorded by the deponent for the immigration officer finally dealing with the case, was adamant that the applicant would not stay in the United Kingdom longer than the proposed amount of his stated visit. There were other matters which were canvassed and, at a later stage on the same occasion, the applicant, being interviewed through an interpreter, said that he would be in the United Kingdom between four and five months, but that that period might be varied should his father's health deteriorate. He said that he had come specifically to assist his father in winding up the business, a task which his father felt unable to undertake alone because of his condition. Also, his father might have wanted the comfort of having a close relation with him who would assist him if he had a relapse, as when his father was last in Pakistan he had a heart attack and was in hospital for a month. It was clear from further questioning that the applicant did not have any particular knowledge of the details of the business, which is hardly surprising, and that he was unclear as to the precise task that he would have to carry out. He gave that immigration officer the impression that he knew nothing about the business and had really come as a companion to his father and thought he might possibly run errands. There was then some discussion about his course at the university to which I have already referred. The appeal to the Immigration Appeal Tribunal was considered on 12 January 1983 and the applicant's application was dismissed. He was then interviewed again on 17 January, the date of the refusal, together with his solicitor. It was at the conclusion of that meeting that formal notice of refusal was issued on Home Office form IS 82C, "Refusal of leave to enter", reading as follows, after naming the applicant:

"You have asked for leave to enter the United Kingdom as a visitor for six months but I am not satisfied that you are genuinely seeking entry for the period of the visit as stated by you. I therefore refuse you leave to enter the United Kingdom. I propose to give directions for your removal on a date to be notified."

Whether or not there was any formal request to apply for the six months' leave to stay as a visitor, is unclear from the history which I have recited, since the period is only referred to in that way in the applicant's affidavit at paragraph 7. This is not wholly consistent with the record of the immigration officers who make it perfectly clear that the period was an indeterminate one, varying up to six months. The rule regulating entry of passengers coming as visitors, material at that time, is to be found in HC 169 paragraph 17. "A passenger seeking entry as a visitor, including one coming to stay with relatives or friends, is to be admitted if he satisfied the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him and that for that period he will maintain and accommodate himself and any dependants, or will, with any dependants, be maintained and accommodated adequately by relative or friends, without working or recourse to public funds, and can meet the cost of the return or onward journey. But in all cases leave to enter is to be refused if the immigration officer is not so satisfied, and in particular, leave to enter is to be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted." I have read that in full, simply to observe that there is no suggestion here that the applicant would not have been able to maintain and accommodate himself or be maintained and accommodated adequately by his father; there is no suggestion here that he might have had recourse to public funds; he had, as I have said, an open return ticket; there was no suggestion that he intended to take employment; and no one of these matters is alleged by the respondent. Before I leave the rules, I refer also to the rules regulating control after entry. In particular I read paragraphs 102 and 103. Paragraph 102 states:

"People admitted as visitors will have satisfied the immigration officer that their intention was to come for a limited period. Most of them will have been admitted for a stay of 6 months; but the immigration officer may have authorised entry for a shorter or longer period, and will normally have imposed a condition prohibiting employment."

Paragraph 103 states:

"Where a visitor wishes to extend his visit, and provided that he has sufficient means to maintain himself and any dependants, without working and without becoming a charge on public funds, for the remainder of his proposed stay and intends to leave at the end of it, an extension should be granted, provided that the duration of the visit would not as a result exceed one year."

In applying those rules, I am mindful of the words of Lord Roskill in R v Immigration AT, Ex parte Alexander (HL(E)) (1982) 1 WLR 1076 at page 1080:

"These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed."

In this case it is not suggested that if the immigration officer had refused the application on the facts, there is room for the application of the Wednesbury principles. The forefront of the case for the applicant, as presented by Mr Friel, is that this immigration officer on 17 January 1983 misinterpreted the relevant rule. Mr Friel concedes that misinterpretation is not apparent from the formal notice, to which I have referred, but is to be spelled out from the immigration officer's affidavit. In doing that, Mr Friel invites me to follow (and I do follow) the course which was approved by the Court of Appeal in the case of R v Chief Immigration Officer, Gatwick Airport, ex parte Kharrazi (1980) 3 All ER 373, in particular the passage in the judgment of Lord Denning MR at page 378. That is a very different class of case. It was a case relating to a 13-year old Iranian student who had come here from America for, to put it broadly, the purposes of study. In the notice of refusal, the immigration officer put it in this way:

"I am not satisfied that you intend to leave the United Kingdom when your studies are completed."

Lord Denning went on to say:

"The boy, his brother and we ourselves had all assumed that this meant when he had finished his full-time education, at school and university. But the affidavit of the immigration officer shows that he interpreted the rule as meaning that he had to intend to leave for good as soon as the course at Pierrepont School was completed; and that as he intended to go on from school to the university, if he could get in, he was to be refused entry."

That was apparent from the affidavit and that was held to be a misinterpretation of the rules. The phrase used by Waller LJ on page 381 at G, was:

"In order to succeed in this case the applicant must show that the immigration officer's conclusion was one to which no reasonable immigration officer could come on the evidence, or that in some other respect the decision was wrong in point of law."

It was not argued there that no reasonable officer could have come to the conclusion which he did, but the court, by a majority, held that there was a misinterpretation of the rules. In approaching this case, I am also assisted by some observations of Dillon LJ in the unreported case of Virendrakumar Patel v The Immigration Appeal Tribunal, a transcript of the judgment of the Court of Appeal given on 29 June 1983 being before me. In the course of that judgment, the learned Lord Justice, again speaking of a case where a student was concerned, said (at page 7 of the transcript):

"The fact, however -- and this is the fourth proposition I would express -- that a student has it in mind, and honestly declares on entering the country to take a particular course of studies, that he would be very happy, if the requisite consents were forthcoming at some stage in the future, to gain practical experience in paid employment after his course of studies is over before returning to his native country, does not inevitably mean that there is reason to believe that he does not intend to leave at the end of his studies. It is merely a factor to be considered. A present intent to leave at the end of a course of studies is not nullified by the expression of a hope that, on the happening of some future event, an applicant may be given permission to enable him to stay longer for some purpose related to his studies before he returns to his own country or leaves this country for some other destination. But it may very well be nullified if he intends or has it in mind, at the time of his entry or at the time of his application for a variation of permission to stay, to seek to stay on for some purpose unrelated to his studies."

With that introduction, I pass to the reasons given by this immigration officer for the refusal of leave. I say at once that there is not a word of a suggestion in his full affidavit that the applicant was not genuine in his purpose in coming to this country. There is not a suggestion that his purpose was other than to care for his father and wind up his father's business. In paragraph 9 of the affidavit, the immigration officer puts the matter in this way:

"On the 17 January 1983 the applicant together with his solicitor, Mr Sharma, attended at Terminal 3 Heathrow Airport."

This, as I have already said, was the interview after the refusal of leave to appeal to the Immigration Appeal Tribunal. "I was on duty at the time and took over conduct of the case. I discussed the case at length with the solicitor Mr Sharma who had little to add to the information already known to the Immigration Authorities and that there were no new facts to adduce. The crux of the solicitor's argument was that as settlement was not now possible consideration should be given to granting his client limited leave for a period of three to six months to allow the applicant time to pack up and return to Pakistan. I briefly interviewed the applicant, in the presence of his solicitor and an interpreter, and obtained confirmation of the facts known to the Immigration Authorities as a result of the interviews hereinbefore referred to. Having considered all the aspects of the case, in all the circumstances I could not be satisfied that the applicant was genuinely seeking entry only for the period of the visit as stated by him. On the contrary I was of the view that if the applicant was granted a leave for three to six months he would be highly likely towards the end of it to apply for an extension. The main reasons for forming this view were: (a) Settlement was always mooted (b) Letter from brother and sister categorically states settlement to be sought (c) The applicant finished studying in December 1981 and has been pretty aimless since then with no apparent direction (d) The applicant's father's health condition. Was he fit to travel? Will his son accompany him or will he stay in the United Kingdom?

"10. Accordingly, with the authority of Chief Immigration Officer R Anderson, I served the applicant with Notice of Refusal of Leave to Enter in accordance with paragraph 17 of Statement of Change in Immigration Rules, HC 66."

If that affidavit had concluded after the sentence which read " . . . in all the circumstances I could not be satisfied that the applicant was genuinely seeking entry only for the period of the visit as stated by him", I do not think that Mr Friel would have sought to say that there was no material upon which that conclusion could have been reached. That, in effect, was his concession, to which I have already referred, on the Wednesbury principle. But the immigration officer makes it perfectly clear that the view he took, and the reason for his lack of satisfaction, was that "if the applicant was granted leave for three to six months he would be highly likely towards the end of it to apply for an extension". He sets out his reasons, the four reasons which I have read, but they nowhere impugn in any way the credibility or genuineness of the applicant. They are, if I may say so, in some respects nothing to the point at all. The second one, it is true to say, was always mooted, but the application had been refused. The letter from the brother and sister categorically stating that settlement was to be sought ante-dated that refusal and also referred to the six months' visitor's stay. The reference in paragraph (c) to the applicant's studies does not (though it is not for me to make any determination on the matter) appear to bear on the question the immigration officer had to decide. Indeed the immigration officer poses for himself certain questions without seeking to give any answers. But there are two things which seem to me to be wholly unsatisfactory about this decision. The first is this. I have the gravest doubt whether, on a proper interpretation of Rule 17, an immigration officer is entitled to decide adversely to an applicant, on the basis that it was highly likely he would apply for an extension when he is entitled, under Rules 102 and 103, to ask for an extension. Mr Pulman, for the respondent, relies on the words in Rule 17 "genuinely seeking entry for the period of the visit as stated by him". He contends that on the plain words, this is open to the immigration officer. That seems to me to be flying in the face of Lord Roskill's words that the rules "must be construed sensibly". The other matter is this. It is perfectly clear, from what I have said of the history and the interviews, that the period sought was not an ascertained period in the sense that it was pre-determined. It was perfectly clear -- or should have been to an immigration officer properly exercising his functions -- that the period depended upon two things: the state of the father's health, and the winding up of the business. I take the view that if the immigration officer was minded to refuse on the basis that he states he did, it was an injustice to the applicant not to ask him whether or not he would apply for an extension if it became necessary. My strongest suspicion is, if the applicant had been asked that question, with his solicitor's advice, he would have said, "I do not really know. Perhaps I had better ask for 12 months". If he had asked for 12 months, subject to adjustment of the period, the grounds on which his application was refused would not have existed. I take the view that in all the circumstances this is not a decision which can safely be allowed to stand. What happens hereafter is a matter, of course, for the Secretary of State. The applicant has already had a period of nine months and no doubt that, among other factors, is something for the Secretary of State and the Immigration Authorities to consider. So far as this court is concerned, the application is granted.

DISPOSITION:

Application granted. Decision of the Immigration Officer quashed.

SOLICITORS:

Singh and Ruparell; Treasury Solicitor

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