R v. Secretary of State for the Home Department, Ex parte Abu Naim Golam Mowla

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ABU NAIM GOLAM MOWLA

Queen's Bench Division

[1990] Imm AR 244

Hearing Date: 13 December 1989

13 December 1989

Index Terms:

Refusal of leave to enter -- legitimate expectation -- passport endorsed with s 3(3)(b) and "visa exempt" stamps -- applicant returned to United Kingdom within period to which those stamps applied -- refused leave to enter -- immigration officer not satisfied that applicant was genuine student who would leave United Kingdom at end of course -- no oral representations made earlier by respondent -- whether viewed objectively the stamps in the passport alone gave rise to a legitimate expectation that the applicant would be re-admitted to the United Kingdom. Immigration Act 1971 ss 3(3)(b), 3(4): HC 388 para 60.

Held:

The applicant wa a citizen of Bangladesh. He had originally been admitted to the United Kingdom as a visitor, and subsequently had been granted variation of leave as a student. During the currency of that leave he went to Bangladesh for a holiday. His passport had been endorsed with s 3(3)(b) and "visa exempt" stamps in common form. When he returned to the United Kingdom he was refused leave to enter as a student. The immigration officer was aware that the applicant had worked in breach of condition during his earlier leave and had also bought a house in the United Kingdom. No mention of the breach of condition was made in the notice of refusal, which only stated that the immigration officer was not satisfied that the applicant was a genuine student who would leave the United Kingdom at the end of his studies. On application for judicial review, it was argued that the applicant, in the light of the stamps in his passport had a legitimate expectation that he would be granted leave to enter. There had been no oral representations made by the respondent (such as had occurred in Oloniluyi) but it was implicit in the applicant's conduct, and his failure to apply for a visa in Bangladesh, that he had relied on the stamps in his passport. By being refused leave to enter he had lost any right of appeal he would have had, in the United Kingdom, against a decision by the Secretary of State either to curtail his leave, or refuse a variation on the grounds either of a breach of condition or the conclusion that the applicant was not a genuine student. The court reviewed the settled cases. Held: 1. The endorsing of a visa national's passport with a s 3(3)(b) stamp and a "visa exempt" stamp, with their present wording viewed objectively, amounted to representations on the part of the immigration authority that the holder of the passport would have no trouble in returning to the United Kingdom within the period of the currency of earlier leave provided the individual returned in the same capacity and there was no information available which would have justified the revocation of earlier leave. 2. In the present case there was such information but it did not constitute the ground on which the refusal of leave was made. 3. If it were to have constituted the ground, there were circumstances in relation to that information which the Immigration Officer would have been obliged to consider and which the applicant had had no opportunity to put to the immigration officer.

Cases referred to in the Judgment:

Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. Bolanle Balogun v Secretary of State for the Home Department [1989] Imm AR 199 (QBD): 603 (CA). Aderimi Kuku v Secretary of State for the Home Department [1989] Imm AR 38 (QBD): [1990] Imm AR 27 (CA).

Counsel:

A Riza for the applicant; JFQ Fenwick for the respondent PANEL: Roch J

Judgment One:

ROCH J: On 7 September 1989 an immigration officer decided to refuse the applicant leave to enter the United Kingdom to follow a course of study, because he was not satisfied that the applicant was a genuine student who would leave the United Kingdom on completion of his studies. The applicant seeks an order of certiorari to quash that decision. The applicant is a citizen of Bangladesh. He is now 33 years of age. The applicant first came to the United Kingdom in February 1987. He had obtained a visa from the British High Commissioner in Malta and he was admitted to the United Kingdom as a visitor for a period of six months. At that time the applicant was a land surveyor working in Libya and had three months' leave from that employment. He had substantial savings and after he had been here for two months he decided to become a student. He enrolled at the English Centre of the College of English in Tottenham Court Road. The course involved his attending as a student for 15 hours each week. He also applied for leave to remain in the United Kingdom as a student. On 16 November 1987 the Home Office gave the applicant leave to stay in the United Kingdom until 30 September 1988. In the summer of 1988 the applicant made a further application to be allowed to remain in the United Kingdom and on 26 September 1988 he was granted an extension up to 30 November 1989. On the grant of that extension the applicant's passport was endorsed in this way: first, a stamp which reads: "Leave to remain in the United Kingdom, on condition that the holder does not engage in or change employment paid or unpaid without the consent of the Secretary of State for Employment, and does not engage in any business or profession without the consent of the Secretary of State for the Home Department is hereby given until 30th November 1989." A second endorsement was stamped on page 18 of the applicant's passport which read: "This will apply unless superseded to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited above." A further endorsement was stamped on that page of the applicant's passport in these terms: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before 30.11.89." His passport had been endorsed with identical stamps on 16 November 1987. In December 1988 the applicant returned to Bangladesh in order to marry. On 3 February 1989 in Bangladesh the applicant married Kiswara Parveen. Following that marriage an application was made on behalf of the applicant's wife for entry clearance to the United Kingdom as a visitor. That was refused. The applicant returned to the United Kingdom on his own on 21 March 1989. On 17 July 1989 the applicant enrolled at the English Centre of the College of English at Tottenham Court Road for the academic year 1989/90 for the upper intermediate level of the English language course. In the previous year the applicant had been attending the intermediate level of the English language course. The 1989/90 academic year began in September 1989. On 25 July 1989 the applicant left the United Kingdom and returned to Bangladesh. He came back to the United Kingdom on 7 September 1989 and it was on that occasion that he was refused leave to enter by the immigration officer for the reason that has already been stated. Application for leave to move this court was made on 21 September 1989 and leave was granted by Popplewell J on 5 October 1989. Popplewell J directed that the case be heard before 30 November 1989. The applicant in his affidavit deposes that he had enrolled in a course of studies at the English Centre of the College of English, being the upper intermediate level course in English language which was due to start on 2 September this year and end on 3 August 1990. The applicant deposes that he had paid the fees for that course and that he had the means to maintain himself during that year whilst he was in this country. The respondents have submitted affidavits sworn by three immigration officers. The first is that of Keith Tasker, an immigration officer at Terminal 3, Heathrow Airport, who says that he interviewed the applicant on his arrival at that terminal on 7 September; that the applicant sought leave to enter the United Kingdom for a further two years in order to study English at the English Centre; that he, the immigration officer, recognised the applicant as the subject of information which had been received from the entry clearance officer in Dhaka, namely, that the applicant and his wife had seen the entry clearance officer in connection with an application for entry clearance for the applicant's wife to join the applicant in the United Kingdom until the end of his studies, and that the applicant had told the entry clearance officer that he had bought a house and had part-time employment working for the husband of his cousin in the United Kingdom. The second immigration officer is Robin Barry Gough who is the immigration officer who refused the applicant leave to enter on 7 September. That officer also interviewed the applicant on 7 September and established that the applicant had been working for five days a week on most weeks up until May or June of this year; that the applicant had been working in order to meet his expenses. That immigration officer in that interview established that the English course would have been of little practical use to the applicant who said his intention was to return to Bangladesh to run his father's pharmacy. In addition Mr Gough obtained information from the English Centre that the applicant had a 60% attendance record as a student. Further, in the course of the interview the applicant's accounts of his purchase of a house in this country jointly with his cousin were neither consistent nor satisfactory. That immigration officer concluded that he had reason to believe the applicant had been working in breach of the conditions attached to his leave to remain in the United Kingdom and that he could not be satisfied that the applicant was a genuine student who intended to leave the United Kingdom on completion of his studies. The third affidavit filed on behalf of the respondents is that of Terrence Chapman, a senior executive officer in the Immigration and Nationality Department of the Home Office. This affidavit is to the effect that the applicant had breached the conditions of his leave to remain in the United Kingdom as a student in that he had been working and that if that information had become available during the applicant's period of leave to remain in the United Kingdom the applicant's leave might well have been curtailed. On 24 November 1989 the applicant applied for an extension of leave to remain in the United Kingdom. The decision of Mr Gough is not open to attack on its merits. On 7 September the immigration officers gave the applicant a full and fair hearing and there was evidence which, in my judgment, justified the decision that was reached. The purchase of a house in the United Kingdom, the wish to bring his wife to the United Kingdom, the regular employment for reward, and the poor attendance record, all justified the immigration officer's conclusion that he could not be satisfied that the applicant was a genuine student who intended to leave the United Kingdom on completion of his studies. The consequences of the refusal to allow the applicant to re-enter the United Kingdom on 7 September were that although the applicant had a right of appeal against that refusal it was a right to which he was entitled only if and when he left this country unless he was the holder of a current entry clearance. This is the effect of section 13(3) of the Immigration Act 1971. Had the applicant remained in the United Kingdom and not visited Bangladesh in July through to September this year, or had the applicant been permitted to re-enter on 7 September, he would have been entitled to apply for an extension of his leave to remain in the United Kingdom and, if that were to be refused, to appeal against that refusal to an adjudicator whilst remaining in the United Kingdom until such application and subsequent appeal, if any, had been determined (see section 14(1) of the Immigration Act 1971). Further, if he had not taken that holiday in Bangladesh, or if he had been allowed to re-enter the United Kingdom on 7 September and the Secretary of State had sought to curtail his leave to remain on the ground that the applicant had taken employment without the Department of Employment's consent, the applicant could have appealed against that decision to an adjudicator under section 14(1) of the Act and remained in the United Kingdom whilst that appeal was being decided. The affidavits put in on behalf of the respondents make no mention of these consequences to the applicant of a refusal of leave to enter or that the immigration officers who interviewed the applicant on 7 September took account of the fact that those consequences would flow from the decision to refuse the applicant leave to enter. Further, in those affidavits no reference is made to the two stamps endorsed on the applicant's passport on 16 November 1987 and again on 26 September 1988, that is to say the section 3(3)(b) endorsement and the visa exempt endorsement. It is to be noted that the ground of refusal was not that the applicant had been in gainful employment in breach of a condition of his leave to remain in the United Kingdom, but that the immigration officer could not be satisfied that the applicant was a genuine student who would leave the United Kingdom on completion of his studies. Had the refusal been on the ground that the applicant had taken up employment in breach of the condition of his leave to remain without the consent of the Secretary of State for Employment, the applicant would have had something to say on that matter in that the applicant had obtained for himself a temporary National Insurance number and had been sent a National Insurance card and, as he deposes in his second affidavit at the eleventh paragraph, assumed that that was a sufficient authority for him to engage in part-time work. The first submission made by Mr Riza on behalf of the applicant is that the applicant was on 7 September the holder of a current entry clearance and, therefore, fell within one of the exceptions to section 13(3) of the 1971 Act and, in consequence, was entitled to appeal whilst remaining in the United Kingdom. However, on an examination of some recent authorities, to which I shall refer in connection with Mr Riza's second submission, Mr Riza withdrew this first submission. In my judgment Mr Riza's concession was properly made and indeed inevitable in the light of the judgments in these authorities. Mr Riza during his submissions on the applicant's behalf also conceded that the applicant's leave to remain in the United Kingdom granted on 26 September 1988 lapsed when in July of this year he left the United Kingdom to go to Bangladesh, which is a country outside the common travel area by virtue of section 3(4) of the 1971 Act. Mr Riza did not seek to argue that in this case the proviso to section 3(4) applied; he did not submit that in this case the applicant had returned within the period for which he had leave to remain "in circumstances in which he was not required to obtain leave to enter". Mr Riza accepted that on 7 September the applicant required leave to enter. The second submission made on behalf of the applicant which has become the sole issue in the case is that the applicant had, by virtue of the endorsements made on his passport in November 1987 and again on 26 September 1988, a legitimate expectation that he would be allowed to re-enter the United Kingdom on 7 September 1989. The point was put in an alternative way, namely, that the immigration officer's decision to refuse the applicant leave to enter on 7 September was unlawful in that the immigration officer failed to take into account the endorsements made on the applicant's passport on 26 September 1988 and the consequences that refusal would have on the applicant's right to appeal. The immigration officer thus failed to discharge the duty placed on him by rule 60 of the Immigration Rules HC 388 of 1989 to deal with Mr Mowla's application to re-enter in the light of all relevant circumstances; nor did the immigration officer apply his mind to the question whether the applicant should have been treated as a new arrival or whether the same time limits and conditions should have been re-imposed on the applicant as those stamped on his passport in September 1988. Mr Fenwick for the respondents submitted that in his case there was no evidence or matter which could give rise to a legitimate expectation other than the section 3(3)(b) stamp and the visa exempt stamp placed upon the applicant's passport, that those stamps whether taken separately or together do not constitute evidence or matter which could lead to legitimate expectation, that there is no evidence in the applicant's affidavits that such an expectation had arisen in his mind by reason of the placing of stamps on his passport or that he had relied on these stamps before deciding to return to Bangladesh in July of this year. Mr Fenwick went on to submit that if no legitimate expectation had been created in this case then consideration of where a right of appeal is exercised simply does not arise in this case. There are three authorities in the Court of Appeal to which reference has to be made on the submissions in the present case. The first is Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. In that case the applicant in her affidavit asserted that an official at Lunar House, which are the offices of the Home Office, had told her that she would have no trouble in returning to the United Kingdom as long as she returned before 31 January 1987 when her leave to remain in the United Kingdom was due to expire. The applicant was from Nigeria and at that time Nigeria was not a country in respect of which a visa was required, but new visa regulations were imminent under which persons from Nigeria would need a visa to come to the United Kingdom. In addition to the oral representation the official endorsed the applicant's passport with a section 3(3)(b) endorsement and a visa exempt endorsement. The applicant in that case also deposed that on her return to the United Kingdom, 25 days before her original leave was due to expire, she did not bring with her any evidence to show that she had been accepted for a course of study, or that her fees had been paid, or that she was being supported financially, because she was relying upon the assurance that she had been given by the offical at Lunar House. In the course of his judgment in that case, Lord Donaldson, Master of the Rolls, at page 141 said: "It is not unimportant that the Minister's letter includes the sentence, 'It was Miss Oloniluyi's own choice to leave the United Kingdom and, as you know, re-entry is not guaranteed but is at the Immigration Officer's discretion'. Nowhere in that decision letter or in the immigration officer's affidavit is any reference made to the alleged conversations at Lunar House, the exemption from visa stamp on the applicant's passport or the section 3(3)(b) endorsement." Later on the same page the Master of the Rolls continued: "What is to the point is whether the respondent has treated the applicant unfairly by refusing leave to re-enter the United Kingdom after creating a legitimate expectation that she would have no trouble in doing so. What is also to the point is whether the immigration officer and the Secretary of State misdirected themselves in law in failing to take account of this factor and of the fact that, faced with a choice between allowing her to re-enter for the remainder of her original period of leave, ie until 31 January 1987 or indeed any lesser period even as short as one day, and refusing her leave to enter, by adopting the latter option they thereby deprived her of a section 14 right of appeal against the implied refusal of her application of December 1985 which should have been determined long before she left the country for her Christmas holiday in Nigeria. When the applicant returned to this country in January 1987, the immigration officer was bound by the provisions of rule 58 of the immigration rules . . . [and here Lord Donaldson set out the terms of the rule which are identical to the terms of current rule 60] . . . Mr Havers for the respondent seemed to be submitting that this rule gave the immigration officer a free choice whether in effect to reinstate the original leave or to treat the applicant as a new arrival. I incline to the view that it would only be appropriate to treat a returning visitor as a new arrival if this would lead to his being treated more favourably than would otherwise be the case or if it was clear that he was returning in a new capacity or if information was available which would have justified the revocation of the earlier leave. The applicant was returning in the same capacity as that in which she had left, namely as a visitor who had applied for a student's extension, and no information appears to have been available which would have justified the revocation of the earlier leave. But, however that may be, the relevant circumstances clearly included the fact that, when the applicant left this country for her Christmas holiday, she had an outstanding application for an extension of her leave to remain which was nearly a year old and which, if refused, would have given her a section 14 right of appeal. They also included the fact that the applicant's passport had been stamped 'visa exempt' and with the section 3(3)(b) endorsement which would clearly indicate to the average visitor that there should be no problem in re-entering this country for the balance of the existing period of leave, even without account being taken of what the official at Lunar House is alleged to have said. In particular, the section 3(3)(b) endorsement clearly contemplates that subsequent leave is likely. None of these circumstances appear to have been taken into account." In his judgment, Dillon LJ at page 146 said: "It is accepted by the Crown that as a matter of law estoppel may lie against the Crown. The argument under the label "estoppel' and the 'legitimate expectation' argument are substantially the same. On the facts of this case, the appellant had a legitimate expectation that she would be re-admitted as a returning student when she presented herself at Heathrow on 5 January. It was therefore wrong that she was refused admission on the ground specified in the notice of refusal, that the immigration officer was not satisfied that she as a genuine student who intended to leave the United Kingdom on completion of her studies. I would accordingly allow this appeal and quash the refusal of leave to enter." Staughton LJ agreed with both judgments. The second authority is that of R v Secretary of State for the Home Department ex parte Kuku decided on 28 September 1989 and not as yet reported. In that case the applicant was from Nigeria. She was granted leave to enter the United Kingdom as a visitor for a period of six months on 21 September 1987. During the currency of that leave she applied to have her leave to enter varied to enable her to study in the United Kingdom. The applicant claimed that she had been to Lunar House on 22 July 1987, that she had been given her passport and granted an extension of her leave to remain in this country until 19 August 1987, ie an extension of 28 days. She had left the United Kingdom but had returned on 18 August 1987, one day before her leave expired. In that case there was no question of any oral representation, nor was there any question of the applicant's passport being endorsed with a section 3(3)(b) endorsement or the visa exempt stamp. Submissions were made on behalf of the applicant in that case, the third of which was that the applicant had a legitimate expectation that if she left the United Kingdom for a short period and returned during the currency of her leave as extended when she would be re-admitted to this country. The applicant had said in her affidavit: "I was verbally assured by the Home Office that as long as I returned to the United Kingdom within the currency of my original leave to enter as a visitor and as my application for variation of status from that of a visitor to that of student was already before them, I should not have any difficulties when returning." The respondents submitted affidavit evidence from an immigration official at Lunar House, a Mr Larking, who had apparently granted the applicant the extension of her leave to remain in the United Kingdom. He denied giving the undertaking suggested by the applicant. At page 13 of the transcript of the judgment of the court given by Woolf LJ this appears: "Mr Larking then goes on to say:

'In certain exceptional circumstances I would be authorised to enable persons to return to the United Kingdom without the need for a visa. However, it would be necessary for the passenger concerned to have obtained an extension of leave to remain for a period of at least 3 months before such an exemption could be granted. In order to facilitate the passenger's return it would be necessary to endorse the passenger's passport with certain stamps to that effect. Thus, if I had given an undertaking of the nature suggested by the applicant, one would expect to find a "section 3(3)(b) enabling stamp" and a "visa exemption stamp" endorsed in the applicant's passport, in addition to a grant of an extension of leave to remain of at least 3 months."'In that case the applicant's passport did not contain a section 3(3)(b) enabling stamp, nor a visa exemption stamp.

The conclusion reached in that case was that the applicant had not proved the oral assurance on which her case of legitimate expectation was based. At page 16 of the transcript, Woolf LJ, referring to the case of Oloniluyi, said: "That case was in fact different on the facts from this case because in that case there was no conflict in the evidence of the sort that I have indicated, and furthermore there was a section 3(3)(b) endorsement on the passport (which of course was not the situation here) which altered the position." Woolf LJ then went on to refer to the third authority to which I shall shortly refer, that of R v Secretary of State for the Home Department ex parte Balogun [1989] Imm AR 199: "However in that case the application was dismissed, though it is relevant to point out that in his judgment Neill LJ emphasised something which I have sought to emphasise, namely that a person who leaves this country (he was there referring to the stamp under section 3(3)(b) in his or her passport) should be left in no doubt whatever that if he or she returns he will require leave to obtain entry. The points which were in issue in that case were different from those in issue here, but that case is in no way inconsistent with views I have expressed," The third authority of the case of Balogun is a decision at first instance of Simon Brown J. In that case there were two applicants for judicial review both of whom were Nigerian citizens who had been studying in the United Kingdom. They both left the United Kingdom during the currency of their leave to remain in the United Kingdom. Both their passports bore section 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. In those cases it was argued that the visa exempt stamp was an entry clearance within the meaning of the 1971 Act and the Immigration Rules, but that argument was rejected. In his judgment, Simon Brown J, at page 202, said: "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 applicant's passports. Although during the first part of the argument upon these motions both parties apparently understood that such stamps are 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 alternative 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." Simon Brown J went on to point out that uner the appendix to the Immigration Rules HC 388 of 1989 there is listed citizens of commonwealth countries who need visas for the United Kingdom. They include citizens of Bangladesh, as is Mr Mowla, and citizens of Nigeria as were the applicants in Balogun. However, that requirement does not apply to those citizens 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 for subsequent leave". Thus, the visa exempt stamp merely states what is in the appendix to the rules. It is not a concession, save in so far as it represents a concession already contained within the immigration rules. At page 203, Simon Brown J concluded the argument on whether these endorsements, either separately or together, amounted to an entry clearance, in these words: "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." Later in his judgment, Simon Brown J pointed out that Dillon LJ in ex parte Oloniluyi had said this at page 144: "The second stamp put on her passport at Lunar House was the usual section 3(3)(b) endorsement and nothing turns on it." Then turning to the visa exempt stamp, Dillon LJ said: "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. That such a stamp was put on her passport on her visit to Lunar House in November 1986 does, however, to my mind, provide some confirmation that the subjects she discussed with the official on that occasion included her proposed Christmas visit to Nigeria and return to this country thereafter." When the case of Balogun reached the Court of Appeal the decision of Simon Brown J was confirmed. However, it is clear from the judgment of Gibson LJ, at pages 7H to 8A of the transcript dated 25 July 1989, that no argument based on legitimate expectation was advanced on behalf of either applicant in that case. The Court of Appeal, therefore, in that case did not consider the legitimate expectation argument. Neill LJ, at page 10F of the transcript, made his favourable observation on the fact that the immigration authorities were considering adding to the wording of the visa exempt stamp so as to make the effect of the stamp absolutely clear and to ensure that the visa nationals who had leave to remain in this country and who had such endorsements on their passports did not leave this country for short holidays in the belief that they would be allowed to re-enter this country providing they returned within the currency of their original leave to remain. In this case I am faced with a Court of Appeal decision in which the legitimate expectation failed where the Court of Appeal found that an oral representation had not been proved and where neither the visa exempt stamp, nor the section 3(3)(b) stamp, had been endorsed on the applicant's passport on the one hand. On the other hand there is a Court of Appeal decision where the legitimate expectation argument has succeeded where the Court of Appeal found that there was an oral representation and where the two endorsements had been stamped on the applicant's passport. In the latter case, that is the Oloniluyi case, both the Master of the Rolls at page 137 and Dillon LJ at page 143 emphasised that every case depends on its own facts. I derive from those passages in Dillon LJ's judgment at page 144 of the report, which I have already cited, the conclusion that Dillon LJ would not have allowed the appeal had he not been satisfied on the balance of probability that an oral representation had been made to the applicant that she would be allowed to return to the United Kingdom. On the other hand, the words of the Master of the Rolls at page 142: "They also included the fact that the applicant's passport had been stamped 'visa exempt' and with the section 3(3)(b) endorsement which would clearly indicate to the average visitor that there should be no problem in re-entering this country for the balance of the existing period of leave, even without account being taken of what the official at Lunar House is alleged to have said. In particular, the section 3(3)(b) endorsement clearly contemplates that subsequent leave is likely." suggest that the Master of the Rolls may well have found for the applicant even if no oral representation had been made. In Kuku's case, at page 16D of the judgment, Woolf LJ considered that the section 3(3)(b) endorsement on the passport altered the position and was a fact which distinguished the Oloniluyi case from Kuku's case. In my judgment, the important point from these cases is that the courts have been under the impression that a visa exempt stamp and a section 3(3)(b) stamp were concessions specially made to visa nationals who have leave to remain in the United Kingdom and who might wish to make short visits abroad during that period of leave to remain, that the section 3(3)(b) endorsement clearly contemplates that subsequent leave to enter is likely. It would seem from the passage of the affidavit of Mr Larking set out at page 13 in the transcript in Kuku's case that Mr Larking was under a similar misapprehension. He thought that he could enable people to return to the United Kingdom without the need for a visa and in order to do so he would have to endorse the passenger's passport with the two endorsements. If that is so it is hardly surprising that a person such as the applicant in the present case might believe that if he went abroad for a short period of time during the currency of his leave to remain in the United Kingdom he would not be at risk on re-entry within the period of the original leave of being refused leave to enter and of being forced to return to his own country to mount an appeal against that refusal. In my judgment, the endorsing of a visa national's passport with these stamps, with their present wording viewed objectively, do amount to representations on the part of the immigration authority that the holder of the passport will have no trouble in returning to the United Kingdom as long as he or she returns within the period of leave to remain current at the moment he or she leaves the United Kingdom for a short visit abroad, providing he or she is returning in the same capacity as that for which the person had leave to remain in the United Kingdom and there is no information available which would have justified the revocation of the earlier leave. Mr Fenwick submitted that there was no evidence that the applicant had relied upon any such representation. It is true that no such assertion is expressly made in the applicant's affidavits. However, I accept the submission of Mr Riza that the applicant must have read and relied upon the stamps on his passport, because the applicant was a visa national, and yet he did not apply for a visa in order to re-enter the United Kingdom. Consequently, he must have read and been relying upon the endorsements on his passport, because no one suggests that Mr Mowla was familiar with the terms of the appendix to the immigration rules HC 388 of 1989. As I have already said, the legitimate expectation is that the visa national will not be refused entry provided that he returns in the same capacity as that in which he had leave to remain in the United Kingdom, and provided that no information exists which would have justified the revocation of the earlier leave. In the present case, Mr Mowla was returning to the United Kingdom in the same capacity as he had leave to remain in the United Kingdom, namely, as a student. However, information did exist which could have led to the revocation of the earlier leave. That is the information, that Mr Mowla had been working in breach of the condition imposed on his original leave to remain in the United Kingdom. However, that was not the ground on which leave to enter was refused on 7 September. Further, if the immigration officer had intended to refuse leave to enter on that ground Mr Mowla should have had the opportunity of placing before the immigration officer, and the immigration officer should have taken into consideration before reaching his decision, the facts that Mr Mowla had obtained a temporary National Insurance number and a National Insurance card and believed that those were a sufficient compliance with the condition imposed on his leave to remain on 26 September 1988. Consequently, I allow this application and quash the decision of the immigration officer refusing the applicant leave to enter. Of course the applicant will still need to obtain an extension of his leave to remain in the United Kingdom, and no doubt in dealing with that application the immigration authorities will take account of those matters which weighed with the immigration officers at Heathrow on 7 September this year. Nevertheless, the applicant will have the opportunity to put his side of the case in relation to the question of employment which there is no doubt he has undertaken.

DISPOSITION:

Application granted

SOLICITORS:

Suriya & Co; Treasury Solicitor

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