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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KUKU

Queen's Bench Division

[1989] Imm AR 38

Hearing Date: 27 September 1988

27 September 1988

Index Terms:

Visa national -- no current visa -- refusal of leave to enter -- assertion that applicant had been assured when she left the United Kingdom during currency of leave that she would have no difficulty in returning -- whether refusal of leave to enter reasonable. Immigration Act 1971 ss 3(1), 3(3)(b), 3(4): HC 169 para 10.

Held:

The applicant for judicial review was a citizen of Nigeria who had been granted leave to enter as a visitor. She applied for variation of leave as a student. While that application was still under consideration she wished to travel to Nigeria. She went to the Home Office. She subsequently asserted that she was told there would be no difficulty in her returning to the United Kingdom. She did not however obtain a re-entry visa or have her passport stamped with a section 3(3)(b) stamp. On her return to the United Kingdom she was refused leave to enter, being a visa national and having no current visa. On application for judicial review it was argued that in the events which had happened the refusal was unreasonable. Held: 1. The position in law of the applicant, following Ghassemian and Mirza was clear. Her leave lapsed when she left the United Kingdom: she needed leave to enter on her return. 2. She required a visa and it was reasonable in the circumstances for her to be refused leave to enter. 3. In relation to the conflict of evidence as to what she was told on her visit to the Home Office, the Court felt "bound . . . to resolve that conflict in favour of the immigration authorities."

Cases referred to in the Judgment:

Ghassemian and Mirza v The Home Office (CA, 27 June 1980).

Counsel:

I Kumi for the appellant; D Pannick for the respondent PANEL: Macpherson J

Judgment One:

MACPHERSON J: In this case Mr Kumi applies for judicial review of the decision of an immigration officer made on 18 August 1987. On that day Miss Kuku applied to come into the country at London airport to do a secretarial course which was going to last five months. There is no doubt, in my judgment, that she did ask to come in at that date, indeed she had to do so, and the immigration officer refused her leave because she held no current United Kingdom visa. The history of Miss Kuku's visits to this country are set out in the affidavits. She had been to the United Kingdom about five times before her arrival in August 1987 and there had never been any impediment placed in her way when she asked to enter as a visitor. I stress that those arrivals were all made when she wished to stay for short visits. On 21 September 1986 she again came in as a visitor and was given leave to enter for six months. Before the expiry of that period she formed the intention to study in the United Kingdom. She obtained consent from her father, made arrangements for her maintenance and enrolled at a college where she was to do a short secretarial course. She applied to the Home Office to vary her leave from that of a visitor to that of a student. She is of course entitled to do that and obtains limited rights to remain under the legislation, to which I have been referred, until her application is disposed of. On 10 July 1987 the applicant wrote to the Home Secretary at Lunar House, and I refer to the letter exhibited to an unsworn affidavit to which I have been referred this morning. She applied by that letter for a re-entry visa using these words: "I would like to apply for re-entry visa", she says, "to Nigeria. I have already sent in my passport, school receipt and bank statement . . . The reason why I am applying for early visa is due to the fact that I wish to travel to Nigeria on date 22/7/87 as the school is now on break and going to resume in September '87. I would really appreciate it if my application is considered at your earliest convenience." This is a somewhat strange letter, since she appears to be applying for a re-entry visa to Nigeria, but I am prepared to accept that what she meant was a visa to allow her to come back to this country. Nothing happened about that letter and there is no dispute but that she never obtained an entry clearance or a visa or a formal document of any kind allowing her formally to come back into this country by such procedure. She went on 22 July 1987 to the Home Office and said that she was going away. She was seen by officials and I will refer to the relevant affidavits shortly. On that day, or shortly afterwards, she left the country. Her leave to remain had been formally extended for only 28 days, in accordance with the usual practice, so that it would have expired on 19 August 1987. On 18 August 1987, as I have already related, she came back and was interviewed by immigration officers at Heathrow and after a period of time she was refused leave to enter. She has been in this country since then because these proceedings were initiated and have been pending for a long time. Her application for leave to bring proceedings for judicial review is dated 10 September 1987; leave was granted by a High Court Judge in October 1987 and here we are in nearly October 1988 hearing the application. The applicant asks me to quash the notice of refusal and an order of mandamus directing the Secretary of State to consider the applicant's application for variation of leave to enter the United Kingdom. In my judgment Miss Kuku's position is perfectly clear. Section 3 of the Immigration Act 1971 governs her case and section 3(1) provides: "Except as otherwise provided by or under this Act, where a person is not a British citizen . . . he" or she "shall not enter the United Kingdom unless given leave to do so in accordance with this Act". Section 3(4) is similarly perfectly clear and it provides that: "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 . . . unless withn 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." This subsection has been considered in terms by the Court of Appeal in a case called Ghassemian and Mirza v The Home Office. It appears to be an unreported case, but a transcript of the judgment, dated 27 June 1980, has been put before me by counsel and is in the possession of Mr Kumi, who acts on behalf of the applicant. It seems to me perfectly plain that the Ghassemian case governs the present case. Bridge LJ (as he then was) gave judgment of the court, with which the other Lord Justices agreed, and he indicated that the vital words in section 3(4) were: ". . . in circumstances in which he is not required to obtain leave to enter." Unless there is some statutory provision, either in the Act itself or in delegated legislation made under the Act allowing somebody in without leave, his leave lapses and there must be fresh leave before he or she is entitled to return. The classic example of a statutory provision in this regard is section 8 of the Act itself which provides an exceptional category of persons, namely, seamen, aircrew and other special cases who are allowed to come in in those capacities without leave. As Bridge LJ said: "there may be other examples in the Act itself, and there may be other examples in delegated legislation", but neither in the Ghassemian case nor the present case have counsel been able to indicate any statutory provision which allowed Mr Ghassemian or Mr Mirza or, indeed, Miss Kuku to return to this country without leave. In my judgment the law is clear. Unless this lady had a visa, or unless there were circumstances which could be said to amount to the granting of a visa or allowing her to expressly come in without a visa, she needed a visa before she could return. What she says is that when she went to the immigration department on 22 July she was assured by the Home Office that as long as she returned within the currency of her original leave to enter as a visitor, and because her application for variation of status was already in the pipe-line, she should not have any difficulties when returning. Against that I have to look at the evidence of the immigration officials involved, namely, Mr Larking and Mr Heath, who have both indicated that no such assurance would have been, or was given, in this case. Both of them indicate that if there had been any question of the Home Office being willing to allow her to come back without permission her passport would inevitably have been stamped with the relevant stamp, which is available in such circumstances, which is in fact absent from her passport. An example of such a stamp is exhibited to one of the affidavits and it is a familiar stamp to anyone dealing with immigration cases in this court. Mr Heath says that at no stage during the interview did the applicant say what she reports that she said to him and he stresses, as I have indicated, that there is no endorsement in the passport to that effect and no note on the reverse side of her landing card, which reports the conversation when she arrived back, indicating that that was the case. If there is a conflict of evidence between the two I am bound, as it seems to me, to resolve the conflict in favour of the immigration authorities. In any event, even taking the applicant's evidence at its face value, all she was told was that she should not have difficulties when returning. She was not told that she did not need a visa or that she had no requirement to obtain permission to come back, and she ought to have known, and apparently did realise according to her own letter, that she might need a visa in order to return after a visit back to Nigeria. Her own letter of 10 July seems, as I have already said, to indicate that. I am not at all impressed by the fact that some other Nigerian national appears to have been able to come into the country without the section 3(3)(b) stamp and without a visa. I do not know anything about the circumstances of that case whatsoever and, for all I know, there may have been some correspondence between the parties allowing that person to come back. It would be quite wrong, in my judgment, for me to take that as a precedent and to conclude that this lady, Miss Kuku, was wrongly prevented from coming into the country in August 1987. That is really the end of the matter and the case, in my judgment, is governed by the decision in Ghassemian, in any event. Furthermore there is very little merit in this application, since when Miss Kuku applied to come back, on 18 August 1987, she told the interviewing officer that she wished to come in to complete the course which she had started and which was due to finish at the end of 1987, so that by dint of this application to the court she has had an extension of nine months of stay in the United Kingdom. During that time she has passed the course for which she applied for leave to enter and apparently she has improved her secretarial or other skills by pursuing further education until now. But the time has come for her to return to her country of origin. I have no doubt at all but that this application is wrongly based and must fail. Everything proper was taken into account by the immigration officials. No visa or special permission was given to the lady to return without leave and she is governed, and firmly governed, by the provisions of the Immigration Act. She must go back to Nigeria. If she wishes, yet again, to perfect her secretarial skills she must apply for a visa before she comes back another time. Without hesitation I reject this application and dismiss it.

DISPOSITION:

Application dismissed

SOLICITORS:

Iqbal & Co; Treasury Solicitor

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