R v. Secretary of State for the Home Department, Ex parte Bolanle Balogun; R v Secretary of State for the Home Department, Ex parte Olusegun Sunday Adekitan

Queen's Bench Division

 

[1989] Imm AR 199

Hearing Date: 23 November 1988

23 November 1988

Index Terms:

Visa nationals -- re-entry to United Kingdom during currency of earlier leave -- passports bearing s 3(3)(b) stamps and visa exempt stamps -- whether immigration officer empowered to refuse leave to enter -- whether a "visa exempt" stamp is an entry clearance within the meaning of the Act. Immigration Act 1971 ss 13(3), 33(1): HC 169 paras 10, 12 (as amended by HC 503), 13, 21, CMnd Paper 9914 (of 15 October 1986).

Held:

The applicants for judicial review were Nigerian citizens who had been studying in the United Kingdom. They left the United Kingdom during currency of their leaves: their passports bore s 3(3)(b) stamps and "visa exempt" stamps. When they returned to the United Kingdom they were refused leave to enter. In each case the immigration officer was not satisfied that they qualified for admission under the student rules. It was argued before the Court that the "visa exempt" stamp was an entry clearance within the meaning of the 1971 Act and the rules. The immigration officer was thus not empowered to refuse leave to enter, unless HC 169 paragraph 13 applied. For the Secretary of State it was argued that on a true interpretation of s 33(1) of the 1971 Act, only a letter of consent was equivalent in effect to a visa or entry clearance. Held: 1. Following Amin the definition of entry clearance could not be as restrictive as the Secretary of State contended: in that case a letter of consent had been characterised as "an example of such another document". 2. The "visa exempt" stamp, however, was no more than a declaration of the provisions of the rules that in certain circumstances citizen of Nigeria and some other countries did not require visas. 3. It was a stamp which could not, therefore, be equated with an entry clearance. The stautory basis had not been fully explored in either ex parte Vivekanandan or Oloniluyi. 4. It followed that the immigration officer had had the power to refuse leave to enter.

Cases referred to in the Judgment:

R v Entry Cleaarance 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 Vivekanandan (unreported, QBD 28 July 1988). Adetutu Oloniluyi v Secretary of State for the Home Department (CA) [1989] Imm AR 135.

Counsel:

I Kulatilake for the applicants; M Kent for the respondent PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: These two applications raise the idential point, and the point is this: is a visa exempt stamp an entry clearance within the meaning of the Immigration Act 1971 and the rules made thereunder? The stamp reads as follows: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before . . ." and there is then inserted a given date, representing the expiry date of the latest extension of leave. Entry clearance is defined by section 33(1) of the 1971 Act thus: ". . . means 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 partial, for entry in to the United Kingdom (but does not include a work permit);" The importance of the point lies in this: by section 13(3) of the Act, a person refused leave to enter: ". . . shall not be entitled to appeal agianst a refusal of leave to enter so long as he is in the United Kingdom, unless she was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit." That, until the commencement of today's hearing, was the provision at the forefront of the challenge, the object of the challenge being to enable these applicants, whose circumstances I shall shortly describe, to remain in this country whilst they pursued appeals against port refusals. In fact, however, when one comes to consider the terms of rule 13 of HC 169, the challenge is more fundamental than that. Rule 13 provides as follows: "A passenger who holds an entry clearnce which was duly issued to him and is still current is not to be refused leave to enter unless the immigration officer is satisfied that:" and there follow three bases upon which the holder of an entry clearance may be refused leave to enter, none of which the Home Office contend arises in the present cases. If the visa exempt stamps do, therefore, constitute entry clearances, it is plain not merely that these applicants would be entitled to remain in this country pending an appeal against the refusal of leave but, further, that the immigration officer would not have been entitled to refuse them leave to enter in the first place. Before turning to the rival contentions upon the crucial point of law, I should say a word or two about the circumstances in which it arises in these cases. Both applicants are citizens of Nigeria. Both have been carrying on studies here with students' leave. Both, earlier this year, were refused leave to enter to resume those studies. In Mr Balogun's application, the facts are these. He arrived in the United Kingdom on 16 February 1980. His last extension of leave was granted on 14 December 1987, to expire on 30 April 1988. He returned to the United Kingdom within the currency of that leave on 27 January 1988. He was refused leave to enter at Gatwick Airport on 3 February 1988 in these terms: "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." The corresponding facts in Mr Adekitan's case are that his last extension of leave was granted on 12 April 1988, to expire on 30 September 1988. The documents before the court do not indicate when he first arrived in this country. He too left the Unitd Kingdom and returned within the currency of that last leave. That was on 27 July 1988 when he was refused leave. The terms of the refusal were these: "You have asked for leave to enter the United Kingdom in order to follow a course of study at Emile Woolf College but I am not satisfied that you are a genuine student who will leave the United Kingdom on completition of your studies." In each case a visa exit stamp had been endorsed on the applicant's passport at the same time as the last extension of leave. To come to the point of law. It is the applicants' submission, cogently advanced on their behalf by Mr Kulatilake, that the visa exit stamps constitute evidence of their eligibility for entry into the United Kingdom within the meaning of section 33(1) of the Act. The first contrary contention raised by Mr Kent on behalf of the respondent Home Office is that these stamps do not fall within the statutory definition, because -- even before consideration of whether or not they evidence the applicants' eligibility -- they are not, it is submitted, documents which have effect "in accordance with the immigration rules." The submission is that to qualify under the section 33(1) defintion, the document must fall within a description specified within rule 12. Rule 12 -- and its terms I take from HC 503 which, in this regard, amended HC 169 -- says this: "Entry clearance takes the form of a visa, letter of consent (for non-visa foreign nationals) or an entry certificate (for non-visa Commonwealth citizens) and these are to be taken as evidence of the holder's elgibility for entry to the United Kingdom, and accoridngly accepted as 'entry clearances' within the meaning of the Act." The argument involves the contention that the only "other document" arising under section 33(1) as a candidate to constitute an entry clearance, is a letter of consent, since rule 12 otherwise refers only to a visa or an entry certificate, both of which gain separate express mention in section 33(1). I reject that argument. It seems to me unnecessarily restrictive. It also appears that in his speech in Amin v Entry Clearance Officer, Bombay [1983] 2 All ER 864 at 869G, Lord Fraser clearly contemplated otherwise. True, that case concerned special vouchers which were subject to their own rule, so this point did not fall directly for decision, but it is to be noted that Lord Fraser describes a "Home Office letter of consent" as but "an example of such another document" as is referred to in section 33(1). In my judgment, however, Mr Kent is on firmer ground when his submissions turn to the true nature of the visa exempt stamp endorsed on these applicants' passports. Although during the first part of the argument upon these motions both parties apparently understood that such stamps ware granted by way of concession -- because visa nationals require a visa as a pre-condition of entry pursuant to rule 10 -- it finally became clear (perhaps as a result of enquiries that I set in train) that the actual position is quite different. I am now told that these stamps are in no sense concessions to visa nationals. They are not issued as alternatives to visas; rather they are merely declaratory of the law as it is properly to be understood, consequent upon the various rules and command papers. The position is this: by command paper 9914 a new appendix was inserted in HC 169 with effect from 15 October 1986. This sets out those nationals of foreign countries and Commonwealth citizens who require visas. At that time, Nigeria was not included. Nigeria was added to the list of such countries with effect from 1 February 1987 by HC 154. By command paper 9914 as amended, however, citizens of Nigeria (and of one or two othe countries) do not require a visa in certain circumstances. Amongst others within those exempting circumstances are: "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." The somewhat tortuous way by which that result is arrived at in command paper 9914, as amended, I need not here set out. These applicants, at the time when their visa exempt stamps were endorsed upon their passports, were being granted extensions of leave pursuant to section 3(3)(b) of the Act. In the result, because of the provisions to which I have referred, they did not need visas, provided only and always that they returned to this country within the currency of those extensions. The stamp merely declared that position. It rightly described the holders as exempt from requiring a visa, so long as they returned to the United Kingdom within the currency of that extended leave -- "to resume earlier leave before (the given date)" as the stamp, somewhat inelegantly, puts it. The visa exempt stamp must accordingly be recognised as something quite distinct and apart from a re-entry visa. If anyone, whether or not exempt from the strict requirement to have a visa, desires to achieve that which a visa is essentially designed to achieve -- namely to ascertain and secure in advance of re-entry their eligibility for admission -- then they are perfectly at liberty to seek a re-entry visa for such purpose. That, however, these appellants did not do. In my judgment, that effectively concludes the argument. Once it is recognised that these stamps merely declare the existing position in law at the time they are endorsed upon a passport, it follows that they cannot sensibly be regarded as evidencing the recipient's eligibility for entry in any sense wider than to establish their non-requirement of a visa. I should, however, breifly mention two unreported decisions which have touched upon this area of immigration law. The first was the decision of McCullough J in ex parte Vivekanandan on 28 July 1988, the second the much more recent decision of the Court of Appeal, dated 18 November 1988, in ex parte Oloniluyi. Both were concerned with visa exempt stamps. In both cases those stamps were, I understand, endorsed in the same circumstances as in the instant case. It may be that in Oloniluyi the stamp was issued in advance of Nigerians becoming visa nationals. But whether or not that is so, is nothing to the point. Both cases were, it seems plain to me, in fact decided pursuant to the self-same misunderstanding of the true position as existed during the earlier part of the hearing before me, by which I mean this: in both cases the court clearly supposed that the stamps were granted as concessions in place of a visa which would otherwise have been required. It was clearly not appreciated that the stamps merely confirmed that under the rules the applicants did not require a visa so that, in reality, their position would have been the same even without the stamps. The stamps, in short, were simply to assist all in recognising the true position in law. In both cases the court nevertheless, despite that misunderstanding, construed the stamps other than as entry clearances, in other words as not evidencing the applicants' eligibility for entry but rather as merely exempting the applicants from what was otherwise understood to have been the rule 10 requirement upon them to have a visa. In short, the court in those cases looked at the position thus: the applicants, on the face of things, required (a) a visa and (b) to satisfy the underlying requirements of eligibility. The visa exempt stamps replaced the need for the former; they did not, however, evidence or replace the need for the latter. In ex parte Vivikanandan, McCullough J, having described how the applicant's passport came to be stamped with both sets of words (namely the section 3(3)(b) endorsement and the visa exempt stamp) said this: "The nationals of some countries . . . in addition to qualifying under the rules are not admitted unless they are in possession of a current visa: paragraph 10 of HC 169. The effect of the second stamp on the applicant's passport was to exempt him from this rule and only from this rule. He still requires to obtain leave to enter." In ex parte Oloniluyi, the point was most closely touched upon in the judgment of Dillon J in these terms: "The stamp cannot, in my judgment, be construed as granting the appellant a visa to re-enter at any time before 31st January 1987. Had she been granted a visa, she could only have been excluded when she presented herself for re-entry at Heathrow on the 5th January on the limited grounds specified in Regulation 13 of HC 169. The stamp however merely granted her exemption from Regulation 10 and the need to have a visa if regulations requiring travellers from Nigeria to hold visas had come into operation. That cannot per se put her in the same position as if she had a visa." Although that applicant succeeded in the Court of Appeal, this was on a quite different ground, namely the demands of fairness and legitimate expectation, having regard not merely to the endorsement of the visa exempt stamp but, more particularly, to a discussion with the Lunar House official who endorsed it, by which the Court of Appeal was satisfied that the applicant had been assured that she would not be inhibited in any way in her return. I am bound to say that if the position was as it has hitherto been understood by the courts to be, and indeed as at first I understood it to be -- namely that these exempt stamps were granted by way of concession -- I would not altogether readily have reached that same conclusion. I would not have regarded the decision in ex parte Vivekanandan as binding, although perhaps I would have been bound by the Court of Appeal decision; that would have depended whether the passage in Dillon LJ's speech was to be regarded as obiter. It would certainly have seemed to me arguable, and I question whether in either case the argument was properly advanced, that a stamp endorsed by way of concession, apparently as a direct alternative to a visa, fell within the section 33(1) definition. That however is no longer a material question, and for the reasons given earlier these applications cannot succeed. In the result I dismiss them.

DISPOSITION:

Applications dismissed.

SOLICITORS:

Graham Peries & Co, London E8; Treasury Solicitor