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

R v Secretary of State for the Home Department ex parte Hindjou

Queen's Bench Division

[1989] Imm AR 24

Hearing Date: 29 July 1988

29 July 1988

Index Terms:

Student -- arrived without entry clearance -- refused leave to enter -- immigration officer mis-applied criteria in the rules -- whether judicial review appropriate -- Swati distinguished. HC 169 paras 21, 22, 24, 106.

Judicial review -- the appropriate procedure where an immigration officer's decision is to be challenged and the Secretary of State has been invited to review it -- whether application for leave to move should be delayed until after the Secretary of State has come to a decision. RSC O 53 r 4.

Held:

The applicant for judicial review sought to quash an immigration officer's refusal of leave to enter. She was a South African citizen who arrived without entry clearance and sought leave to enter as a student. For a variety of reasons the immigration officer was not satisfied that she was a genuine student whose circumstances brought her within the relevant rules. The Secretary of State on review upheld the immigration officer's decision. On application for judicial review it was argued that the immigration officer had mis-applied the criteria. He had looked at the whole span of the intended studies of the applicant rather than concentrating his mind on the immediate preparatory course she intended to undertake. For the Secretary of State, following Swati, it was argued that her remedy lay through an appeal to the immigration appellate authorities and that judicial review was inappropriate. Held: 1. The Court of Appeal, in Swati did not indicate that "the applicant must show that there was no appeal procedure available to him but that he had to show that the decision maker mis-applied the criteria for granting leave to enter." 2. The applicant had shown on the facts, that the criteria had been mis-applied and the case was open to judicial review. 3. The immigration officer, on his evidence had taken into account a number of factors, some of which were irrational: his decision accordingly was flawed. The Court was not prepared to say that if he had not taken those irrational elements into account the immigration officer would have come to the same conclusion. 4. Application for judicial review had been delayed until after the Secretary of State had made his decision to uphold the immigration officer's original decision. It was that original decision that formed the basis of the application and in such cases it was imprudent to delay the application until after the subsequent decision was known.

Cases referred to in the Judgment:

Price Bros (Rode Heath) v Secretary of State for the Environment (1979) 38 P & CR 579. Taj Mohd Swati v Secretary of State for the Home Department [1986] 1 All ER 717; [1986] Imm AR 88.

Counsel:

Miss F Webber for the applicant; I Ashford-Thom for the respondent PANEL: Schiemann J

Judgment One:

SCHIEMANN J: Miss Hindjou, aged 18, arrived on 20 December 1986 from South Africa at Heathrow. She sought leave to enter as a student. She was interviewed by an immigration officer, Mr Taylor. He also interviewed Angeline Kozonguizi, who was her sponsor. The applicant did not have entry clearance. At the conclusion of the interviews she was refused leave to enter by Mr Taylor, who served her with a notice in standard form which had the following typed on it: "You have asked for leave to enter the United Kingdom as a student for five years, but you have no acceptance for full-time study for all of this period and I am also not satisfied that you can, without working or recourse to Public Funds, meet the cost of any course and your own maintenance during that period. Furthermore I am not satisfied that you are a genuine student who intends to leave the United Kingdom on completion of your studies." Subsequent representations secured her temporary admission. In an attempt to persuade the Home Secretary to adopt a different attitude from that which had been adopted by the immigration officer, various representations were made to him. In particular there was placed before him a telex from a Brother Moeskobs, dated 28 December 1986, which stated that Miss Hindjou's course would be paid for by the Roman Catholic Church at Windhoek, a certificate issued on 1 January 1987 by the Cape Education Department indicating that she had satisfied all the examination requirements for the Senior Certificate (the equivalent, I am told, of "A" levels), and a letter from the West London College indicating that tuition fees amounting to @745 had been received by them. However, the Home Secretary, in two letters dated respectively 31 March 1987 and 20 July 1987, refused to give her permission to enter. She thereupon applied for leave to move for Judicial Review. Her paper application was refused on the basis that she had a right of appeal to an adjudicator. She renewed her application in front of Mann J, who granted it on 29 October 1987. She seeks to quash the original refusal notice of 20 December 1986, and also to quash the Secretary of State's decision taken on 20 July 1987 to uphold the refusal notice of 20 December 1986. There is at first sight an air of artificiality about these proceedings in that, with the passage of time, we now have a situation where the lady asserted without contradiction that she had been staying here for 18 months at no expense to the public purse and that, during this time, she has acquired sufficient educational qualifications to permit her to embark on the teachers' training course upon which she wishes to embark. The judicial review proceedings have been brought because she undoubtedly needs leave to enter in order to pursue these studies further and because she has failed to obtain such leave. She could have appealed the decision of the immigration officer of 20 December 1986, but the immigration rules laid before Parliament pursuant to Section 3(2) of the Immigration Act 1971 provide that for people in her situation her right of appeal is only exercisable after she has left the country, which usually involves substantial expense and delay. Had she been permitted to enter for only a short period, she could then have applied for a variation of leave to enter so as to extend the period. If that had been refused, she could then have appealed and would have been able to remain in this country whilst that appeal was pursued. Where there are alternative methods of appeal, in general leave to apply for judicial review is not granted. In the immigration field this has been established in R v Secretary of State for the Home Department ex parte Swati [1986] 1 All ER 717. At page 723, Sir John Donaldson MR said this: ". . . it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant. This aspect was considered by this court very recently in R v Chief Constable of the Merseyside Police ex parte Calveley [1986] 1 All ER 257 . . . and it was held that the jurisdiction would not be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided. Mr Swati may have no basis for complaint at being refused leave to enter. He may have cause to complain that the immigration officer erred in her assessment of the evidence, that her credulity threshold was too high. He may have cause to complain that she misunderstood and therefore misapplied the criteria for granting leave to enter. We simply have no idea which is the case. All these matters will be open on a statutory appeal, but only the latter could form the basis for judicial review . . . In a word, Mr Swati's case is wholly indistinguishable from the general run of cases where someone arrives in the United Kingdom and is dissatisfied because he is denied leave to enter. Accordingly, . . . he should not be allowed to pursue it by way of judicial review." It is clear, in my view, from the totality of that quotation that although the Master of the Rolls says "judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided", he was not there indicating that the applicant must show that there was no appeal procedure available to him but rather that he had to show that the decision maker misapplied the criteria for granting leave to enter. It is clear that this was also the approach of the other Lords Justices. Swati is a case with which all the judges hearing cases in the Crown Office list are well familiar. Mann J no doubt gave leave because he thought it arguable that the present was an exceptional case. Does it appear that the immigration officer misapplied the criteria fro granting leave to enter? Before looking at the criteria, I note that citizens of South Africa are not amongst those so-called "Visa Nationals" who, by virtue of paragraph 10 of the rules are to be refused leave to enter unless they have a visa. There is however a procedure whereby, in his home country, such a citizen can apply for entry clearance -- see rule 11. I suspect that if only young Miss Hindjou had been able to contain her impatience and had applied for an entry clearance, she would have got it and a lot of subsequent aggravation would have been avoided. However, she did not choose to do that, but came here without entry clearance. Her position under the rules has to be gathered by considering the following paragraphs dealing with students: "21. A passenger seeking entry to study in the UK should be admitted . . . if he presents a current entry clearance granted for that purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the Entry Clearance Officer that he has been accepted for a course of study . . .; that the course will occupy the whole or a substantial part of his time; and that he can, without working and without recourse to public funds, meet the cost of the course and of his own maintenance and accommodation and that of any dependents during the course. 22. An applicant is to be refused an entry clearance as a student if the Entry Clearance Officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it. In assessing the case the Officer should consider such points as whether the applicant's qualifications are adequate for the course he proposes to follow, and whether there is any evidence of sponsorship by his home Government or any other official body . . .

. . .

24. A passenger who holds a current entry clearance, or who can satisfy the Immigration Officer that he fulfils the requirements of paragraphs 21-23, may be admitted for an appropriate period depending on the length of his course of study and on his means, with a condition restricting his freedom to take employment; he should be advised to apply to the Home Office before the expiry of his leave to enter for any extension of stay that may be required. A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the UK and that he intends to leave the country on completion of his studies but cannot satisfy the other requirements of paragraphs 21-23 may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case. Otherwise a passenger arriving without an entry clearance who is seeking an entry as a student is to be refused admission.

. . .

106. A person who satisfied the Immigration Officer that he had been accepted here for a full-time course as a student, could maintain and accommodate himself during his stay, and would leave when his studies were completed, is likely to have been admitted for an appropriate period, depending on the length of his course, with a condition restricting his freedom to take employment. Alternatively a student may have been given leave to enter for a short period under the provisions of the penultimate sentence of paragraph 24 with a prohibition on employment, and advised to apply to the Home Office for a variation of his leave when he had completed his arrangements for study." Mr Taylor, the Immigration Officer, deposes as follows: "3. The Applicant sought leave to enter the United Kingdom as a student for a period of 5 years. She had in her possession @1050 in travellers cheques but her airline ticket was only a single ticket. She explained that she had enrolled on a 3 months course to study English at the West London College, and showed me a letter from the College supporting this statement. There is now produced . . . a bundle of copies of the papers which the applicant showed to me during our interview. It was clear from these papers that the sum of @745 course fees were still outstanding. The Applicant told me that these would be paid for in January 1987 by the Catholic Church in Namibia. However, the Applicant had no documentary evidence with which to support this statement. 4. The Applicant went on to say that if she passed the three month course it was her intention to enrol for a two-year 'A' level course. She told me that she had not made any arrangements to do so. She said that the expenses incurred by this further course would be met by a Christian Aid Grant for which she had applied. However, the Applicant told me that she had not yet heard whether she had been successful in her application for this grant. If she passed the 'A' level course, the Applicant said that she would enrol on a 3-year course for a BA in Education; she naturally had not made any arrangements to do so, nor did she know where the money for this would come from. 5. The Applicant showed me the results of her 'Standard 8' examinations taken in South Africa. A copy of the document shown to me is . . . exhibited. I considered that these results were poor. The Applicant also told me that she had sat an examination in mathematics, which she had failed. The Applicant told me that she had left school on 14 November 1986. 6. I questioned the Applicant further about the financial arrangements she had made. She said that she would be staying with her 'auntie', Angeline Kozonguizi, who had lived in the United Kingdom for some years and who had refugee status here. The Applicant also showed me a letter from the Africa Educational Trust . . . which not only stated that the Trust was unable to provide funds for the Applicant, but recommended strongly that the Applicant secure funding before leaving for the United Kingdom. The Applicant also had a letter from the University of London concerning an abortive scholarship application, and an application made by her brother for a Christian Aid study grant which she said she intended to post in the United Kingdom. 7. I also asked the Applicant about the financial position at home. She said that she had three brothers, all younger than her, and a small sister. She told me that her aeroplane ticket had been paid for by a local charity. She told me that the money she was carrying had been given to her by her parents. She told me that her mother was a nurse and her father a typewriter repair man. 8. Finally, I noted that the Applicant was also carrying a letter which appeared to be a letter of introduction addressed to a Mr and Mrs A Marsh of Oxford. The Applicant told me that Mr and Mrs Marsh were no relation to her. The letter is . . . exhibited. At the end of the letter the phrase 'she is a sweet little thing that is very well trained' was used. I suspected that this was a recommendation of the Applicant's suitability as a domestic servant. 9. After interviewing the Applicant, I interviewed her sponsor, Angeline Kozonguizi. Mrs Kozonguizi agreed that the Applicant's examination results were poor. However, she told me that she had understood that the Applicant had sat her 'Standard 10' examinations, which are roughly equivalent to English 'A' levels, in December 1986. This contrasted with the evidence of the Applicant's 'Standard 8' results, roughly equivalent to English 'O' levels, which I had seen. I also asked her about the financial position. Mrs Kozonguizi told me that approximately three weeks before she had made an application on the Applicant's behalf for a Christian Aid grant, and she was very optimistic about the grant being awarded. However, Mrs Kozonguizi stated that the Applicant was not in receipt of a grant at that moment. Finally, she told me that it would be helpful if leave to enter were granted to the Applicant for a period of three months in order for her to 'finalise her arrangements' and 'to see if she would be suitable for studies'." The letter which is referred to by Mr Taylor, and which was supposed to be posted by the applicant in England, contains a fair amount of information about various people with which I am not concerned, but has the following relevant passage: "This letter is to be posted in London by a Frieda Witness Kahoo Hindjou. She is coming to England to do 'A' levels. She is a niece to us and a daughter of one of my best friends who is also a nurse. She is going to stay with Angeline -- the one working at Friends House at Euston. I would very much like Mara to come and introduce her to you. She is a sweet little thing that is very well trained. If all goes well we shall come to England during the first week of June. Our love and best wishes to all in the family." Miss Webber, on behalf of the applicant, submits that it does appear that the immigration officer mis-applied the criteria for granting leave to enter. One way, and the most obvious way in my judgment, of reading the endorsement of the refusal of leave to enter was that the immigration officer was looking only at the full period of five years and looking to be satisfied that the applicant had both acceptances and funds, or at least promises of them, for the whole of the five year period. Miss Webber submits that if that was his approach, it was unlawful and wholly unrealistic since acceptances and grants in respect of the teachers' training course would almost never be available before the commencement of the qualifying studies which the applicant wished to pursue first. I consider there is force in that submission. Miss Webber further submits that it appears that the immigration officer regarded the absence of such promises of acceptance and funds for the whole period as a reason for failing to be satisfied of the genuineness of the applicant's intention to embark on the course. Again I see force in that submission. If those were his thought processes, they seem to me to be unreasonable as the word is used in this branch of the law. Whatever the precise form of words used by Miss Hindjou, it is clear that in substance what she was asking for was permission to enter the United Kingdom in order to embark on a course of studies which, if all went well, she hoped to complete some years hence. This was manifestly a paragraph 24 case in which the immigration officer should have considered, as he was asked to do by Mrs Kononguizi, whether to admit her for an initial shorter period. Mr Ashford-Thom, on behalf of the Home Secretary, submitted that if one reads Mr Taylor's affidavit with sufficient care, and in particular the penultimate sentence of paragraph 10, which I am about to read, one can see that Mr Taylor could not be satisfied that the applicant was a genuine student whatever the period of study proposed and that therefore it was clear that he had considered the application as one he could consider as being only a three month application. I am not satisfied that this is so, but let us suppose it was. On what basis did the immigration officer fail to reach satisfaction in the applicant's case of the matters set out in paragraph 22? He sets them out in paragraph 10 of his affidavit: "10. I then considered the Applicant's case. The Applicant sought leave to enter for a period of 5 years as a student. However, she had arranged only a course of three months duration for which she had yet to pay. There was no evidence that any funding of any of the courses which the Applicant wished to undertake would be forthcoming. Secondly, the Applicant had left for the United Kingdom despite being strongly advised by the Africa Educational Trust not to leave her country without having secured a scholarship. Thirdly, I considered that the Applicant's educational standards were very poor. I was not satisfied that she would be able to attempt, let alone complete, an 'A' level course. Fourthly, although the Applicant claimed to have lined up various grants, she had no evidence of this, and I was unconvinced that any grant giving body would be keen to sponsor a student who could not pass 'O' level mathematics. Fifthly, I could also see no reason for the Applicant to undertake a short English course given the cost involved relative to her financial circumstances: the Applicant already spoke English well, and came from a country where English was widely spoken. Finally, the Applicant's stated intentions seemed out of proportion to her background. She had only a single ticket to the United Kingdom which had been paid for by a charity; her parents had spent a very large amount of money, taking into account their background and responsibilities in South Africa, in sending her here; and the letter of introduction seemed to me like a reference for a domestic servant. Considering all" (my underlining) "these factors, I could not be satisfied that the applicant was a genuine student, whatever the period of study proposed. I was also unsatisfied that she would have any incentive to return to South Africa at the end of any studies which she might undertake." I look at these matters in turn. 1. "There was no evidence that any funding for any of the courses which the applicant wished to undertake would be forthcoming". That is the @745 which, according to paragraph 3, the applicant told him would be paid in January 1987 by the Catholic Church in Namibia. Well that was evidence, although he may not have believed it. It was open to him not to believe her, and I have to put out of my mind the telegram eight days later that the money was available and the actual payment in January. 2. "The applicant had left for the United Kingdom despite being advised not to do so without having secured a scholarship". A fair point for what it is worth. 3. "The applicant's educational standards were very poor. I was not satisfied that she would be able to attempt, let alone complete, an 'A' level course". Well that was a view that was open to him. However, the purpose of her three months' course to study English in the West London College was no doubt to improve her educational standards. And in my judgment the immigration officer's mind ought to have been directed to that initial course, not to the subsequent 'A' level course. 4. "Although the applicant claimed to have lined up various grants, she had no evidence of this and I was unconvinced that any grant-giving body would be keen to sponsor a student who could not pass 'O' level Mathematics". I have dealt with the question of evidence. As for Mathematics, it is certainly arguably irrational to suppose that the absence of 'A' level Mathematics would inhibit a grant. Again I must put out of my mind that, as we now know, it did not. 5. "I could see no reason for the applicant to undertake a short English course given the cost involved relative to her financial circumstances: the applicant already spoke English well". It appears from the Standard 8 certificate, which was before Mr Taylor, that English was the applicant's second language and that she had a poor grade in it, but I suppose this sentence in the affidavit reveals no manifest error of approach. 6. "The applicant's stated intentions seemed out of proportion to her background, she had only a single ticket to the United Kingdom which had been paid for by a charity, her parents had spent a very large amount of money taking into account their background and responsibilities in South Africa in sending her here and the letter of introduction seemed to me like a reference for a domestic servant". These matters seem to me to be wholly irrational. The letter of introduction seems on its face totally innocent, and the remaining matters are a tribute to the efforts of her parents and the generosity of a charity. I fail to see how this can be held against the applicant. When I put this point to Mr Ashford-Thom, he submitted that of course these matters were on top of the other 5, and that unless I was satisfied that the other five were untenable taken together, I should not quash merely on the basis of a bad sixth ground which did not even appear in the endorsement of the refusal of leave to enter. This, in my judgment, is a wholly erroneous approach. Where an administrator has filed an affidavit to amplify his reasons for a decision contained in a few sentences and stated that he has considered all of a number of matters after which consideration he could not be satisfied, the court should be slow to find that the matters set out in that affidavit did not weigh with the administrator. If they did weigh, then the Court should not assume that the administrator would have come to the same decision in the absence of a factor which should not have been taken into account. To do so would be for the Court to act as administrator. Further it is clear from the penultimate sentence of paragraph 10 that Mr Taylor took all the factors into account, and by reason of all those factors failed to be satisfied that the applicant was a genuine student. Mr Taylor tells us in his affidavit at paragraph 10 that "I was also unsatisfied that she would have any incentive to return to South Africa at the end of any studies which she might undertake". If that was his approach, it was wrong. He is not required to be satisfied in relation to incentives. He was required to be satisfied that the applicant intended to leave the country on completion of her course of studies. It seems probable that his approach was wrong and influenced by what I regard as an impermissible construction of the letter of introduction and impermissible deductions of the actions of her parents and the charity in sending her here. Whether one looks at the endorsement on the refusal of leave to enter, or at the affidavit of Mr Taylor, in my judgment it appears from those documents that the immigration officer mis-applied the criteria for granting leave to enter. Having come to that conclusion, I now ask myself: should I none the less refuse to quash on the basis set out in Swati that there is an alternative avenue of appeal? This is essentially a matter of discretion, and I propose to quash because it seems to me the most sensible thing to do. In doing so, I am only doing now what would inevitably be done in the course of the appeal process. This is a case where, in my judgment, the immigration officer mis-applied the criteria for granting leave to enter and that, as was recognised by Sir John Donaldson MR, is a proper basis for judicial review and distinguishes this case from the run of cases such as Swati where there are all sorts of grounds of challenge. Everything in the present case appears on the face of the record, which is no doubt why Mann J gave leave to apply for judicial review. What in substance the immigration authorities in this case are concerned with is whether now, in respect of her proposed course, the applicant can fulfil the criteria set out in the immigration rules. That is not something that can be investigated on an appeal into a decision taken over a year ago. Much the most sensible thing to do is to quash the decision of the immigration officer which will have the effect of permitting him to interview the applicant again and consider the evidence which she now brings forward. (cf Price Brothers (Rode Heath) Ltd v Secretary of State for the Environment [1978] 38 P & CR 579, especially 591). In those circumstances there is no advantage in my considering the immigration officer's decision. He proceeded on the basis that the immigration officer's decision was not itself flawed, and that in consequence the applicant should appeal that decision if so minded; and it has not been submitted on behalf of the Secretary of State that, should I find that the immigration officer's decision was flawed, I should nevertheless refuse to quash it because of anything subsequently done by the Secretary of State. I ought to add this: in circumstances such as the present, where an applicant seeks to quash an immigration officer's decision, he should apply for leave within the period specified in RSC Order 53 rule 4. It is not to be assumed that an applicant will be able to sidestep that rule by applying to the Secretary of State to reconsider the immigration officer's decision and, when that application is unsuccessful, asserting that he wishes to challenge the Secretary of State's decision and that he has moved promptly since that decision although a long time may have eelepsed since the immigration officer's decision. Even if the Secretary of State's decision is amenable to judicial review and even if it is struck down by the Court, the applicant will still be left with the immigration officer's decision. Since the Secretary of State is not obliged under statute or the rules to act as an appeal tribunal from the immigration officer in cases such as the present and does so as a matter of grace, a decision of the Court on the Secretary of State's decision will not necessarily advance the substantive position of the applicant. What he is primarily concerned with as a matter of law is the immigration officer's decision and, if he asserts that this contains an error on its face, he should apply to the Court promptly for leave to apply for judicial review. If he wishes to pursue an application to the Secretary of State, he can do so contemporaneously. The time considerations will usually weigh heavily at the grant of leave stage. If however leave is granted and, as in the present case, the Court is persuaded after argument that the immigration officer's decision is flawed by law, then the Court may feel that it is a little artificial in the absence of identifiable prejudice to refuse, on grounds of delay, to grant the relief to which the applicant is prima facie entitled simply because the original application for leave to apply for judicial review was made late. For my part I suspect that I might well have refused leave in the present case to challenge the immigration officer's decision on the basis that the application was made too late, and that I would have refused leave to challenge the Secretary of State's decision on the basis that a striking down of that decision would not by itself achieve anything if the immigration officer's decision were left intact. However, for the reasons given earlier on in this judgment, I allow this application.

DISPOSITION:

Application granted

SOLICITORS:

Brixton Community Law Centre; Treasury Solicitor

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