R v. Secretary of State for the Home Department, Ex parte Adetutu Iyabode Oloniluyi

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ADETUTU IYABODE OLONILUYI

Queen's Bench Division

[1988] Imm AR 376

Hearing Date: 2 March 1988

2 March 1988

Index Terms:

Estoppel -- whether a s 3(3)(b) stamp in a passport and a stamp indicating that a visa requirement had been waived gave rise to estoppel to prevent an immigration officer applying the statutory requirements relating to the grant of leave to enter -- whether alleged Home Office assurances gave rise to estoppel to bind an immigration officer -- whether an applicant by acting so as to alter her rights of appeal, acted to her detriment as that term was understood in relation to estoppel. Immigration Act 1971 ss 3(3)(a), 3(3)(b), 4; HC 169 paras 24, 58.

Held:

The applicant for judicial review was a Nigerian citizen who was admitted to the United Kingdom as a visitor. She sought variation of leave to remain as a student. While that application was under consideration, she wished to return home for Christmas. She accordingly went to the Home Office in person. She was granted a two month extension of leave and her passport was endorsed with a s 3(3)(b) stamp: a stamp was also put in her passport indicating that she would be exempt from the forthcoming new visa requirements, if she returned to the United Kingdom during the currency of her short extension of leave. When she returned to the United Kingdom she was refused leave to enter, the immigration officer not being satisfied that she was a genuine student. On application for judicial review it was asserted that a Home Office official, in stamping her passport had assured her that she would have no difficulties on seeking re-entry. It was submitted that acting on those assurances she had acted to her detriment, in particular she had lost the right of appeal while in the United Kingdom against a refusal of variation of leave as a student. Held: 1. As a matter of commonsense the Home Office official could not have intended by his assurances to do more than say that the applicant would not be in difficulties because she would not have a visa, if such a requirement were by then in force. 2. "It is . . . inconceivable that a Home Office official would be able to confer some special right upon this lady not to have to go through the specific statutory requirement of obtaining leave upon entry into this country." 3. However, if any such special status had been conferred by a Home Office official, it might be that an immigration officer would be bound by it. 4. In the events which had happened no estoppel arose. The applicant had not acted to her detriment. By going abroad she had lost the right of appeal in this country against a refusal of variation of leave as a student but the Court was not satisfied "that the position into which she placed herself by way of rights of appeal should be or can be interpreted as a detriment in the ordinary sense of that expression used in the law of estoppel." 5. The applicant was not a returning resident or someone to whom paragraph 58 of HC 169 applied: her application had been properly considered as a student application under paragraph 24. In the light of the results of enquiries, the immigration officer's decision could not be faulted by way of judicial review.

Cases referred to in the Judgment:

No cases are referred to in the judgment.

Counsel:

A Riza for the applicant; P Havers for the respondent PANEL: Macpherson J

Judgment One:

MACPHERSON J: In this case Adetutu Iyabode Oloniluyi, who is at present living in this country, applies with leave for judicial review of the decision of an immigration officer made on 15 January 1987, or alternatively for the review of the Secretary of State's decision given in a later letter. The applicant is a Nigerian citizen now aged 23. She was at school in Nigeria and did some nursing training there. She came to this country on 20 June 1985 as a visitor, and was given leave to enter in that capacity only for six months, that is to say, until about the end of 1985. She says that after she had been in the United Kingdom for a period of time she decided that she would like to study here, and so she enrolled at the London School of International Business and applied for an extension of stay as a student before her initial six months had expired. She was unwise enough in December 1985 to work for six weeks for two hours per day as a domestic assistant in a hospital. I am confident that she knew perfectly well that that was contrary to the immigration law. She finished working when the police discovered what had been going on, and she says that she has not worked since. No doubt the police noted on their records for the benefit of the Home Office that this breach had occurred. By November 1986 unfortunately the applicant had still not heard from the Home Office about her application to remain as a student. her leave to remain had expired and she had had no extension of any kind given to her. She, therefore, went to Lunar House, which is peopled by Home Office officials, in November 1986. She took a bank statement, and a letter from somebody in America confirming that a company would continue to be responsible for her financial obligations. By this time she was already doing her course of study since she took a letter confirming her attendances. There is no indication of any detailed investigation of her affairs and she was given leave to remain by the Home Office official for two months until 31 January 1987. That was a very limited period of time, it will be noted, and plainly did not comprehend the time for which she later asked when she returned to this country in circumstances to which I shall shortly return. While she was at Lunar House, the applicant says that she told the official that she was going to Nigeria for the Christmas holiday. According to her affidavit she asked no questions about what would happen on her return, but she says that the official told her -- presumably volunteered to her -- that she would have no trouble in returning to the United Kingdom as long as she came back before 31 January 1987 when her leave expired. In paragraph 4 of her affidavit she continues by saying: "He told me that the new visa regulations might come in before I returned but not to worry about that since he was stamping my passport that I wouldn't require a visa. My passport was endorsed with section 3(3)(b) endorsement and also the words 'The holder is exempt from requiring a visa for returning to the United Kingdom prior to the 31 January 1987'." The stmaps which appear in her passport are the stamps put on by the Home Office on 27 November 1986 which gave her leave to remain on condition that she did not enter or change employment paid or unpaid without the consent of the Secretary of State for Employment and did not engage in any business or profession without the consent of the Secretary of State for the Home Department. That stamp is followed by the section 3(3)(b) stamp which reads: "This will apply unless superseded to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above." I shall turn to that section shortly, but that is the section 3(3)(b) stamp which indicates that in this particular case the conditions set out in the Home Office stamp will continue to apply unless superseded if the applicant should come back to this country again. In addition there was what was at that time a fresh stamp in its own square saying: "The holder is exempt from requiring a visa if returing to the United Kingdom to resume earlier leave before", and there is no date. However, the same date plainly governs that stamp as governed the earlier stamp, namely 31 January 1987. The first point taken in this case is that the immigration officers who saw her when she came back in January 1987 from her Christmas trip were not entitled to do anything, as I understand the argument, other than admit her back into this country. The argument is that a representation was made by the Home Office official that she would have no trouble returning to the United Kingdom. It is said that she acted on the representation to her detriment by leaving, and that she would not otherwise have left. It is also said that an estoppel arises which should prevent the immigration officials from raising the objections that they later did and from preventing her coming into this country. I have no hesitation in rejecting that argument. It is perfectly true that there is no evidence to contradict what the applicant says took place at Lunar House. I do not know what the explanation for that is. It could be that the official does not remember what happened, or it could simply be that the official has not been seen. All that the absence of evidence on the other side means is that there is nothing specifically and factually to contradict that which the applicant says. However, it seems to me that as a matter of commonsense all that the official could conceivably have intended to mean and all that he did mean by what he said was that she would not be troubled if she came back without a visa. He was indicating to her that she would have no trouble in returning to the United Kingdom as long as she came back before the relevant date when her leave expired and he said that, as her own affidavit shows, in the context of the existence of the new visa regulations and of his intention to stamp her passport not only with the section 3(3)(b) endorsement but also with the words exempting her from the requirement to hold a visa. It is in my judgment unthinkable that a Home Office official would be able to confer some special right upon this lady not to have to go through the specific statutory requirement of obtaining leave upon any entry into this country. It is accepted that she needed leave whenever she returned, and it seems to me that it is impossible to interpret the words which she says were spoken as being an express representation that the immigration officials would not have to go through the necessary statutory and regulatory steps in testing whether she should be admitted on her return. Mr Havers further points out that it is doubtful whether she suffered any detriment as a result of reliance upon the words spoken by the Home Office official. It seems to me that that is probably right as well. If he had not spoken the words she would have gone in any event, and here is no indication that it was simply because she was given that assurance that she went to Nigeria for Christmas rather than remain to enjoy that season in this country. Mr Riza indicates that the rights of appeal were different as a result of what took place and that may be so, but I am not satisfied that the position into which she placed herself by way of rights of appeal should be or can be interpreted as a detriment in the ordinary sense of that expression used in the law of estoppel. Broadly it seems to me that the attempt to rely upon what she was told at Lunar House by a Home Office official is an opportunist argument advanced when she got into difficulties when she returned in January. I shall turn to that shortly, but before turning to the facts of her return I will mention the law which is applicable. Section 3 of the Immigration Act 1981 makes it perfectly plain that where a person is not patrial she shall not enter the United Kingdom unless given leave to do so in accordance with the Act. Mr Riza accepts that when she came back she needed to ask for leave. Mr Riza's first argument is that the immigration officers should not have refused leave because of the estoppel. I have already dealt with that argument. Section 3(3)(b) reads as follows: "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 makes it plain that if somebody like this applicant returns to the country, the conditions originally imposed will still apply in particular as to the duration of the stay being limited to 31 January 1987 unless that condition or the other conditions are superseded. Section 4 indicates that the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and the power to give leave to remain, or to vary any leave under section 3(3)(a), shall be exercised by the Secretary of State. I should indicate that if I had been satisfied that there had been a positive conferring of some kind of status upon this lady by the Home Office official, I might have been prepared to conclude that the immigration officer would be bound by that estoppel, but since the matter does not arise I say no more about that aspect of the case. I am left, therefore, with the requirement by statute that this applicant had to obtain leave to come back in January when she returned from her Christmas holiday. She was interviewed twice on 6 January 1987 and 15 January. Her intention had been to start her college course of one year -- I was expressly told that today on 16 January 1987. What she said to the immigration officer and what he received from her by way of interview is all set out in the two affidavits which are before me. If there is any dispute as to what was said it seems to me that I must prefer the respondent's affidavit, although in the end there is not a great deal of variance between the two. I look then at the rules in order to decide what the immigration officer had to do faced with Miss Oloniluyi coming to his desk in January, and indicating that she wished to come in at least until the end of January in fact for a further year in order to continue her studies. It is of some significance that there was only a fortnight left of her original leave by the time the second interview took place on 15 January 1987 since the expiry date of the extended leave given in November was 31 January 1987. By the end of January fresh consideration of the whole of this case would have been essential in order to allow her to remain here to complete her course. She was, however, as is evident from the affidavit, asking for leave to come in to start her course on 16 January and this to remain for a further year from that date. How had the immigration officials therefore to consider the matter? I turn to the relevant rules which are to be found in House of Commons Paper 169, and I look first at paragraph 58 since Mr Riza argues that his client was a paragraph 58 returning person. I use the word "person" advisedly. Paragraph 58 reads as follows: "A passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident." That is the basic first sentence of he paragraph. This applicant could not, therefore, claim the particular benefits that returning residents have on arrival back in this country. Paragraph 58 continues: "His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time limit and any conditions attached may be re-imposed or it may be more appropriate to treat him as a new arrival." Mr Riza argues that in some way his client's application was more at large than would have been a new arrival seeking to come into this country as a student. It does not seem to me that that is the proper interpretation of paragraph 58. Paragraph 58 deals primarily and expressly with the imposition of the same time limit and conditions attached or a fresh consideration of the application in order to contemplate different conditions and time limits being applied than those already applicable to the returning applicant. I am not sure in the end that the distinction between those two interpretations of paragraph 58 make much difference since it is plain that this applicant was seeking fresh terms when she arrived back in January from those of which she had the advantage from the Home Office granted in November 1986. What she wanted to do was to extend her stay for another year so as to complete the course at the London School of International Business Studies. Therefore the immigration officer was right, in my judgment, to look at her application to come in as a student, and to consider her application primarily, if not entirely, as a paragraph 24 application. She had no entry clearance and, therefore, she had to satisfy the authorities that she had genuine and realistic intentions of studying in the United Kingdom and intended to leave the country on completion of her studies. If "all the circumstances" were to have been considered, I do not in fact see what other matters needed to be considered favourably to the applicant in any event, but in my judgment, since I have to resolve the matter, Mr Havers' interpretation of paragraph 58 is in fact correct. Looking at the matter then afresh and with new conditions in mind the immigration officers twice interviewed the applicant, and they found unsatisfactory aspects in a number of the matters which came to light or came into their particular minds when they considered the case on those two dates. The things that troubled the immigration officers are set out in the affidavit dated 1 March 1988 and there is no need, in my judgment, to rehearse them. But the fact is that they noted that this lady had taken unauthroised employment. They believed that they had been deceived in certain matters when interviewed, and they were doubtful about some aspects of her plans for the future. The last matter would not presumably loom very large, but it was something which they were fully entitled to take into account. In any event, the onus was upon this lady to satisfy the immigration officers in accordance with familiar principles in cases of this kind, and the certificate given by the relevant officer dated 15 January 1987 indicates that after what were familiar and well-known investigations they were not satisfied that this lady was a genuine student intending to leave the United Kingdom on completion of her studies. This court is not a Court of Appeal from a decision of an immigration officer in circumstances of that kind. That has repeatedly been said in these courts and in the Court of Appeal in recent years. I see nothing unreasonable or irrational in that conclusion. In my judgment it was a conclusion which the officers were perfectly entitled to reach. In those circumstances Miss Oloniluyi's stay should have terminated on 24 January 1987 at 1355 hours when she boarded flight LZ 132 to Nigeria via Bulgaria. The fact is, however, that she has been here for a year and a month since that time. Presumably, she has been happily concluding her course of business studies. If so, her object has been achieved by the time that it has taken for this case to reach the courts. If she has not, then the immigration officer's conclusion may be said to have been fortified. At all events, she has been here for as long as she was asking to stay, and I see no injustice in the treatment of her by any of those who have considered her case. If I am right in these respects, then the Secretary of State was also perfectly entitled to say what he did in his letter of April 1987 when he reinforced his immigration officer's decision that this lady should not be allowed to remain. If she has not completed her studies and if she wishes to become a British qualified businesswoman in order to pursue her activities in Nigeria, she can apply for an entry clearance, and if she satisfies the entry clearance officer that she is genuine she can return to continue her studies, but for the moment she must board an airplane for Nigeria since, in my judgment, her application is ill-founded. She has no complaint in law. There was no wrong decision by those involved in this case. There was no estoppel, and this applicaton must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

BM Birnberg & Co, London EC1; Treasury Solicitor

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