R v. Secretary of State for the Home Department, Ex parte Su-San Chong

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte SU-SAN CHONG

Queen's Bench Division

[1990] Imm AR 397

Hearing Date: 4 April 1990

4 April 1990

Index Terms:

Passport stamp -- defective -- no claim made at the time for deemed indefinite leave -- applicant subsequently sought and granted limited leave -- whether at a later date applicant could rely on earlier defective stamps to assert that from the date of those stamps she had had indefinite leave to remain in the United Kingdom. Immigration Act 1971 s 3(4), sch 2 para 6(1): HC 169 para 56.

Judicial review -- student refused leave to enter on return from holiday -- outstanding application for variation of leave -- whether judicial review appropriate remedy -- whether respondent may raise that issue, relying on Swati and Doorga at the substantive hearing of the application -- whether that issue must be raised at the stage when application is made for leave to move.

Held:

The applicant was a citizen of Malaysia. She had regularly visited the United Kingdom since 1982. She had been a student and then sought variation of leave to take articles with a London firm of solicitors. While that application was outstanding, she went to Malaysia for a holiday. On her return she was refused leave to enter. That refusal was challenged on judicial review. Two points were raised in the proceedings. First, it was contended that by virtue of defective stamps in her passport in 1984 and 1985, she had on those occasions secured deemed indefinite leave to remain in the United Kingdom. No claim to deemed indefinite leave had been then made. Subsequently on more than one occasion she had entered the United Kingdom, seeking and being given limited leave. Counsel argued that nevertheless on the basis of those defective stamps she had had indefinite leave since 1985: that "status" was not affected by any intention on her part. The immigration officers on later occasions should have given her leave as a returning resident. For the respondent it was argued that notwithstanding any merit the case might have, following Swati and Doorga, it was not a case in which the discretionary remedy of judicial review would be appropriate. The applicant had a statutory right of appeal to the immigration appellate authorities. For the applicant it was contended that the principles set out in Swati and Doorga applied to applications for leave to move for judicial review, and the question could not be raised subsequently, when leave had been granted. In any event, the threat of imminent removal from the United Kingdom that faced the applicant, was a special circumstance which put the case within the exceptions to the general rules laid down in Swati and Doorga. Held: 1. The applicant had no right to rely on the defective stamps in her passport, when after those stamps had been impressed, she had sought and obtained limited leave. Tolba and the dicta of the Master of the Rolls in Coomasaru followed, Akinrujomu approved, Minton distinguished. 2. The respondent was not restricted to raising issues relating to Swati and Doorga at the stage when there was an application to move for leave to apply for judicial review. The respondent was entitled to wait until the hearing of the case itself. 3. It could not be said that the threat of imminent removal from the United Kingdom, in itself, was a special circumstance such as to bring the case within the exceptions set out in Swati and Doorga. It it were, almost every case could be so distinguished. However, the application for failing on its merits, the court did not decide whether the rule in Swati would have applied in this case.

Cases referred to in the Judgment:

Gilbert Coomasaru v Immigration Appeal Tribunal [1982] Imm AR 77. Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88. R v Secretary of State for the Home Department ex parte Tolba and ors [1988] Imm AR 78. Secretary of State for the Home Department v Victoria Akinjujomu [1988] Imm AR 590. Ghassemian & Mirza v Home Office (27 June 1980) [1989] Imm AR 42. Davendrath Doorga v Secretary of State for the Home Department [1990] Imm AR 98. John Emerson Minton v Secretary of State for the Home Department [1990] Imm AR 199.

Counsel:

G Clarke for the applicant; R Jay for the respondent PANEL: Kennedy J

Judgment One:

KENNEDY J: This is an application for judicial review of a decision of an immigration officer who on 27 May 1989 refused the applicant leave to enter the United Kingdom. The application to enter had been made at Heathrow Airport on 26 February 1989 and prior to that, in November 1988, the applicant had applied for variation of leave to remain. The refusal of leave to enter effectively disposed of the November 1988 application. Originally there was also a challenge to the refusal of a work permit but that challenge has now been abandoned and I shall say very little more about it. The applicant, who was born on 19 April 1964, is a citizen of Malaysia. Since at least 1982 she has been a regular visitor to the United Kingdom. She obtained a degree at Bristol University and in 1987 she was called to the Bar. She than began to work with a leading firm of chartered accountants with a view to acquiring a qualification in that field but during 1988 she decided to revert to the law and to qualify as a solicitor. A London firm of solicitors agreed to provide articles of clerkship and so it became necessary to make the November 1988 application for variation of her leave to remain because that leave only permitted her to pursue the accountancy qualification. At the end of 1988 she went home to Malaysia for Christmas and when she returned to Heathrow on 26 February 1989 she was expecting to start work with the firm of solicitors early in March. Since these proceedings were commenced she has indicated that she no longer intends to work with the firm, nor does she intend to train to become a solicitor and she has returned to Malaysia. That change of career plan has curtailed the issues raised by this application. Essentially the case for the applicant is now confined to one contention, namely that by virtue of an unclear stamp in her passport dated 30 September 1984 she had obtained unlimited leave to enter and remain in the United Kingdom and the right to be treated on any arrival in the United Kingdom as having the status of a returning resident. The stamp in question is copied at page 61 in the bundle and on that same page there is also copied a stamp dated 21 April 1985 which may be intended to refer back to the stamp of 30 September 1984, and which may itself, in the submission of Mr Jay for the respondents, be the most relevant stamp for present purposes. Although there was an oral application for leave in this case, the respondents were not represented and it is not clear to what extent the judge who gave leave attached weight to the fact that in relation to the decision of the immigration officer which was challenged the applicant did have a right of appeal under the Immigration Act 1971, which right she could exercise from Malaysia. In R v Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477, and more recently in R v Secretary of State for the Home Department, ex parte Doorga [1990] Imm AR 98, the Court of Appeal has emphasized that where such a right of appeal is available leave to move for judicial review should not normally be granted. For the applicant, Mr Clarke's contention in relation to what I can for convenience describe as the Swati point is that I need not concern myself with it because the Swati and Doorga decisions are about whether or not to grant leave. They are not concerned with what should happen after leave has been granted. Mr Clarke recognises that normally leave is granted ex parte, but he submits that it is always open to the respondents, if they wish, to challenge the grant of leave, as was done in the Doorga case. For the respondents, Mr Jay contends that there is no obligation on the respondents to mount a special challenge to the grant of leave. They can simply, as in this case, wait until the substantive hearing to argue the Swati point. In my judgment that argument advanced by Mr Jay is right, but it leaves open the question of whether this is a case in which the applicant did have a satisfactory alternative remedy. Mr Clarke submits that she may not have had such a remedy because if she is right in her main contention, namely that for years prior to her arrival at Heathrow Airport in early 1989 she had been entitled to the status of a returning resident, then it would hardly be satisfactory for her to have no way of challenging the refusal of leave to enter other than by means of a right of appeal which can only be exercised after she has left the United Kingdom. Mr Clarke also contends that in this case the application for leave to move for judicial review was warranted by the imminent threat of removal from the United Kingdom. If that imminent threat could constitute a valid reason for distinguishing what was said in Swati and Doorga, those decisions could be distinguished in almost every case. Finally, in relation to this topic, Mr Clarke contends that an application for judicial review was warranted because on the substantive point it is necessary to look at some decisions of this court and of the Court of Appeal which he says may be in conflict with one another. That would not in my judgment afford any reason for by-passing the statutory appellate process and proceeding by way of judicial review, but there being possibly an unwarranted restriction on the applicant's right of appeal, that is a point of susbstance which could perhaps justify a departure from the normal appeal procedure. Accordingly, in this particular case it seems to me that it is appropriate to approach the matter as Mr Jay has done, namely by looking, first, at the substantive point and then at the question of whether there is an adequate alternative remedy. That has the additional attraction that it results in a decision on the substantive point and that is a result which both sides wish to achieve. For the purposes of these proceedings it is conceded by the respondents that the 1984 and 1985 stamps, to which I have already referred, were defective and that they did not comply with the requirements of the Immigration Act 1971 as to the giving of notice, so that on one or other of those dates, and for the present purposes it does not matter which, the applicant by virtue of the statutory provisions acquired unlimited and unconditional leave to enter and to remain. In R v Secretary of State for the Home Department, ex parte Tolba & ors [1988] Imm AR 78 I attempted to explain how the statutory provisions operate to achieve that result and I see no reason to repeat that explanation here. It is common ground that after 1985 and prior to February 1989 this applicant left and re-entered the United Kingdom many times (see pages 25 and 26 of the bundle). On each occasion she had leave to enter and on no occasion did she claim already to have unlimited and unconditonal leave; that was because until after February 1989 she was not aware of the effect of the defective stamps. Mr Clark submits that had she been aware of their effect she could on each occasion, when she re-entered after 1985, have taken advantage of what he says are the mandatory provisions of paragraph 56 of HC 169 which in so far as it is material provides: "Any . . . passenger returning to the United Kingdom from overseas . . . is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than 2 years." Mr Jay submits that paragraph 56 only requires admission for settlement where the applicant satisfies the immigration officer as to certain things, namely that she had indefinite leave to enter or remain in the United Kingdom when she left and that she has not been away for longer than two years. So, submits Mr Jay, there is under the rule no automatic right to admission for settlement. The applicant has an onus which she has to discharge. Mr Clarke submits that insofar as there is an onus, the applicant can discharge it by presenting her passport with its defective stamps and its indication of the date of the most recent departure. It is immaterial that the applicant does not otherwise claim to have had indefinite leave to enter or to remain in the United Kingdom when she left and does not seek admission for settlement. Her state of mind is really irrelevant, save that as she has never received written notice of the indefinite leave to enter, which pursuant to paragraph 6 of schedule 2 to the 1971 Act she is deemed to have received, the immigration officer should have taken the time to give that notice as soon as possible. Taking his argument to its logical conclusion, Mr Clarke submits that every immigration officer who after 1985 gave this applicant limited leave to enter was acting ultra vires. Turning to the authorities, Mr Clarke submits that what was said by the Master of the Rolls, obiter, in R v Immigration Appeal Tribunal, ex parte Coomasaru [1982] Imm AR 77, 81, and by me in ex parte Tolba, to the effect that an immigrant cannot complain of not receiving returning resident status if she has never claimed it, is incorrect. Something to the same effect was said by the Immigration Appeal Tribunal in the case of Secretary of State for the Home Office v Victoria Olufun Akinrujomu [1988] Imm AR 590. If Mr Clarke is right then it must follow that the case of Tolba was wrongly decided and it is perhaps a little unfortunate that Mr Clarke should have found himself in front of the judge who decided that case. Mr Clarke contends that where status is in issue intention is irrelevant and that as in 1984 or 1985 the illegible stamps operated through the medium of the satutory provisions to confer status, irrespective of the intentions of the immigrant, it would be illogical if her state of mind on re-entry were to be a critical factor in deciding whether or not she could retain or rather regain that status thereafter. Mr Clarke contends that his submissions are to some extent supported by the recent decision of the Court of Appeal in R v Secretary of State for the Home Department, ex parte Minton (8 November 1989, unreported)*, but that case was primarily concerned with the effect of a largely illegible stamp and furthermore the applicant in that case, on the first occasion when he sought to enter the United Kingdom after the imposition of the defective stamp, did claim that he had indefinite leave to remain, so the Court of Appeal did not have to consider what is the central issue in the present case. Mr Jay submits that the indefinite leave to enter and to remain, which by operation of law the applicant acquired in April 1985, lapsed when she next left the country, namely in July 1985. He submits that that is clear from the wording of section 3(4) of the 1971 Act which, insofar as it is material, reads as follows: "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 within 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 . . ." Mr Clarke does not argue with the proposition that the leave lapsed and he also accepts that when the applicant returned on 11 September 1985 she was not returning in circumstances in which she was not required to obtain leave to enter (see Ghassemian v Home Office [1989] Imm AR 42). What he submits is that her dormant leave automatically revived as soon as she produced her passport but, as Mr Jay points out, the applicant did not then seek, and on the evidence did not even desire, leave to enter as a returning resident, so all she got was what she asked for, namely limited leave. There was nothing, submits Mr Jay, ultra vires about that grant of limited leave, and even if there was it would be too late to challenge it now. It was granted pursuant to sections 3 and 4 of the 1971 Act. As to the authorities, Mr Jay relies upon the obiter dicta in Coomasaru and on the case of Tolba in which the relevant facts were similar to those in the present case. In Tolba's case at page 83, after quoting paragraph 56 of HC 169, I said: "It seems to me that the words of this rule must not be too strictly construed. For political or other reasons a returning immigrant may not wish to be admitted for settlement. He may only wish to be admitted as a visitor, or as a student, for a limited period, and it would, in my judgment, be wrong so to interpret paragraph 56 as to require the immigration officer to admit the immigrant for settlement. So the effect of paragraph 56 is to require the immigration officer to admit the immigrant for settlement if that is what he seeks, and in my judgment there is no obligation on an immigration officer to advise an immigrant who seeks admission only as a visitor, or as a student, for a limited period, of his right to be admitted for settlement." I still believe that to be right. Mr Jay emphasizes, as I have already indicated, that the Court of Appeal in the case of Minton was concerned with rather a different point. Very much at the end of his submissions, Mr Jay invited me to consider what I may for convenience describe as the Swati point, namely whether this is the right forum in which to seek relief. In my judgment the submissions made by Mr Jay on the substantive issue are right. This applicant has not had any right to rely on the defective stamps in order to claim unlimited leave to enter and remain since 11 September 1985 when, after the stamps had been imposed, she sought and obtained limited leave. That conclusion seems to me to follow from the wording of paragraph 56 of HC 169 and also from the decisions to which I have been referred. If that conclusion is right, then of course it can also be said that the Swati point is a good one and that this applicant should not have obtained leave to move for judicial review, but as she fails on the substantive issue the resolution of the Swati point is really an irrelevance. For the reasons I have given this application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Michael Lawson, Turner & Nathan; Treasury Solicitor

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