R v. Secretary of State for the Home Department, Ex parte Rab Nawaz Sadiq

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte RAB NAWAZ SADIQ

Queen's Bench Division

[1990] Imm AR 364

Hearing Date: 7 March 1990

7 March 1990

Index Terms:

Refusal of leave to enter -- student -- applicant failed to observe conditions attached to previous leave -- whether those breaches of condition justified the refusal -- whether they were merely "technical" and should have been discounted. HC 169 paras 58, 76.

Visa national -- return to United Kingdom during period of earlier leave -- passport contained 'visa exempt' and s 3(3)(b) stamps -- whether immigration officer failed to take into account, when refusing leave, applicant's legitimate expectation he would be re-admitted to the United Kingdom -- the true ambit of the applicant's legitimate expectation. Immigration Act 1971 s 3(3)(b), 3(4); HC 169 paras 10, 58, 76.

Immigration Officer -- refusal of leave to enter -- whether in the events which had happened the refusal of leave was a disproportionate exercise of his powers.

Held:

The applicant was a citizen of Pakistan. He had been a student in the United Kingdom. He left the country for a short period and returned during the period of his earlier leave. His passport contained 'visa exempt' and s 3(3)(b) stamps. On arrival in the United Kingdom he was refused leave to enter: the immigration officer had discovered that the applicant had worked while a student, in breach of the condition attached to his earlier leave. On application for judicial review it was argued on his behalf that the breaches of condition were 'merely technical': as a student he could have applied for permission to take occasional work and that might well have been granted. In any event, following ex parte Mowla the applicant had, on the basis of the stamps in his passport, a legitimate expectation that he would be re-admitted to the United Kingdom: that was a matter the immigration officer failed to take into account. Moreover, in all circumstances the decision to refuse leave to enter was a disproportionate exercise of his powers by the immigration officer. Held 1. On the facts, the breaches of the condition attached to the applicant's previous leave were not merely technical: they were substantial and persistent breaches committed in full knowledge. In relying on them to refuse leave to enter the immigration officer was clearly acting within his powers. 2. Following Balogun the 'visa exempt' stamp in the applicant's passport was not the requisite evidence of his eligibility to enter the United Kingdom. 3. The 'visa exempt' and s 3(3)(b) stamps together did not amount to a representation or give rise to a legitimate expectation that the applicant would be admitted to the United Kingdom: ex parte Mowla not followed. 4. If the stamps did amount to a representation or give to a legitimate expectation, that would be limited to the representation that the applicant did not require a visa if returning to resume the leave earlier granted to enable him to pursue his studies. 5. On the facts there had been no disproportionate exercise of executive power in refusing leave to enter, despite the special and particular difficulties that refusal involved for the applicant.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Kuku [1989] Imm AR 38. Adetutu Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. R v Secretary of State for the Home Department ex parte Balogun [1989] Imm AR 199 (QBD): [1989] Imm AR 603 (CA). R v Secretary of State for the Home Department ex parte Mowla [1990] Imm AR 244.

Counsel:

A Riza for the applicant; G Sankey for the respondent PANEL: Otton J

Judgment One:

OTTON J: This is an application by Rab Nawaz Sadiq for judicial review of the decision of the immigration officer dated 23 May 1989, whereby he refused the applicant leave to enter the United Kingdom in order to study, on the basis that he had not observed the conditions imposed on earlier grants to enter and remain in the United Kingdom. The applicant is a Pakistani. He first arrived in the United Kingdom on 10 September 1987, in possession of an entry clearance in order to visit. He was given leave to enter for three months. He enrolled as a student and in October 1987 he was given leave to stay until 30 October 1988. In 1988 he began a course at the City of London College in Tourism, Catering and Management. In October 1988 he obtained leave to remain in the United Kingdom until 7 October 1989. On the grant of that extension, the applicant's passport was endorsed with two stamps at page 19 of the passport: "Leave to enter the United Kingdom, on condition that the holder does not enter 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 7th October 1989." Below this was the following passage: "This will apply, unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above." The wording of this stamp is slightly different from the stamp which was endorsed 12 months earlier but no point has been taken on this. At page 21 of the passport the second stamp stated: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before 7/10/89." He is a married man and his wife, whom he married in the United Kingdom, is here with limited leave. On 26 April 1989, he embarked at Heathrow to travel to Jedda to perform his religious duties and thereafter he travelled to Pakistan. Before leaving he obtained from Dr Kang, the director of the City of London College, a letter which confirmed that he was a full-time registered student at the college, his course had commenced in October 1988, was due to terminate in December 1989, and that he had paid his tuition fees in full up to December 1989. On 23 May, he entered the United Kingdom on a flight from Karachi at approximately 6.30 in the morning. He was interviewed briefly by Ms Amanda Jane Eager, an immigration officer. She examined his passport and observed the stamps. Accordingly, the applicant was seeking to enter the United Kingdom as a returning student. He showed her the letter from Dr Kang. The applicant told Ms Eager that he studied for some 15 hours a week and that his wife was also a student in London. She asked the applicant what else he did with so much spare time and he told her that he did nothing at all and denied that he was in any form of employment. She made a short record of the interview on his landing card which contained the succinct entry "no work here". She then handed the case over to her colleague, Mr Dickens, for further action. Mr Dickens asked the applicant whether he had taken up any employment and he emphatically denied that he had. He was, however, found to be in possession of various documents. They included a form of employment directed to him as a Qualified Assistant Leader of the Pakistan Centre on behalf of the London Borough of Brent Education Committee. He also had in his possession pay slips from the London Borough dated 4 March 1988 and 26 August 1988. He was asked why he had told lies to Mr Dickens. The applicant stated that he had been informed by the Pakistan Centre that permission would be sought by it from the Immigration Service Headquarters and the Department of Employment. He also said that he had only worked there for approximately six months and he found out from a friend that he was not supposed to be working without permission so he stopped work completely. He was then asked whether he had any other jobs and he replied he had definitely not. Unfortunately he had with him documents which included a copy letter from The Direct Car Services relating to a Mr RN Bakhsh, bearing the same address as the applicant in north west London. The applicant stated that it was not him but a friend whose papers had obviously got mixed up with his by mistake. The letter stated that Mr Bakhsh was operating his own car with a car hire firm. Perusal of the applicant's passport revealed that his father was Nabi Bakhsh. The applicant then admitted that he had been working as a taxi driver for this firm but claimed that he was not working for them at present. He was then confronted with a pay slip dated 26 October 1988 from Pizzaland. The applicant admitted that he had also worked for them. The applicant apologized for lying to Mr Nuttall and said that he could not really explain himself. He had taken up employment because he had so much spare time. He was working solely for the money because he had finances of his own and also received from his father financially. At about 11 o'clock Mr Nuttall made further telephone enquiries and at approximately 11.15 he interviewed the applicant in Urdu through an interpreter. The applicant confirmed the employments with Pizzaland and the Pakistan Centre. He also admitted that he had worked for Direct Car Services for a month or so in early 1989 for approximately 20 to 25 hours a week. He also said that he had never missed any classes at his college except through illness. He explained how his wife also studied in London and that he provided her with money. Her father also sent her money. The couple's long term plans were to live in Pakistan. He was asked about his accommodation and whether he could produce any evidence of remittances from overseas to pay for his studies. He produced photocopies of drafts to the City of London College and the Centre for English Studies. Mr Nuttall then considered the facts and, although he thought the applicant should probably not be granted leave to enter as a student in the light of his employment without permission, he considered that the applicant's wife should be interviewed before any decisions were made. At about 2.20 in the afternoon Mr Chandler interviewed Mrs Nawaz Sadiq. She was asked what she would do if her husband was refused leave to enter the United Kingdom, whereupon she became upset and explained that she was expecting a baby in September or October and had no one in this country to whom she could turn. If her husband was refused leave she would have to give up her studies and return to Pakistan with him. Further enquiries of the City of London College confirmed that the applicant was a good attender and student. The applicant was then reinterviewed and he was asked to read the stamps in his passport out loud. He did this and he was asked what they meant. He said that he should not work without permission. He agreed that he had done so. The immigration officers then reviewed the case as a whole. There was incontrovertible evidence of his having breached the conditions of his leave to enter granted in October 1987, and during the renewal period from October 1988. He had consistently lied when given the opportunity to tell the truth. Mr Chandler decided that it was appropriate to refuse leave to enter under the provisions of paragraph 76 of HC 169. He referred the case to the chief immigration officer, Mr Higgins, for authority to refuse leave to enter. Mr Higgins took all the information on file into account and for the same reasons as given by Mr Chandler, he authorized Mr Chandler to serve the applicant a notice of refusal of leave to enter. An unusual circumstance then transpired which has proved of no consequence. By mistake Mr Chandler served a notice of refusal in form IS82 which gave details of a right of appeal from within the United Kingdom. He should have used the form IS82C which explains that the applicant has a right of appeal only after he has left the United Kingdom. Nothing now turns on this. Paragraph 58 of HC 169 provides as follows: ". . . a passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident. His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time limit and any conditions attached may be re-imposed or it may be more appropriate to treat as a new arrival." The relevant parts of paragraph 76 are as follows: ". . . the fact that a passenger satisfies the formal requirements of the foregoing provisions of these rules is not conclusive in his favour. Leave to enter may be refused if, for example, the passenger has not observed the time limit or conditions imposed on any grant of leave to enter or remain; if, whether or not to his knowledge, false representations have been employed or material facts not disclosed, orally or in writing, for the purpose of obtaining an entry clearance; or if a previous leave to enter or remain had been obtained by deception." Mr Alper Riza, on behalf of the applicant, realistically concedes that the periods of employment without permission constitute a failure to observe conditions imposed on the grant of leave to enter or remain. His first submission is that this failure is a technical breach of the conditions and the lack of frankness was not relevent. There is provision within the rules for permission for employment to be obtained. He suggests that I should assume that such permission, if sought, could have been obtained and granted. The breaches themselves do not justify the refusals. They must be substantial breaches; insignificant breaches can and should be ignored. As it is put in paragraph 4 of the grounds: "The Immigration Officer had erred in refusing leave to enter since the Applicant's immigration history, including the fact that he had taken unauthorized employment, was not of itself enough to justify the revocation of his earlier leave." The second submission centered on ground 1 as lodged which reads: "The applicant's passport was endorsed with a visa exempt stamp. It is submitted that a visa exempt stamp is requisite evidence of his eligibility to enter the United Kingdom under paragraph 10 of an Immigration Rules HC 169 as amended." In the course of argument, Mr Riza advanced a further or supplementary ground which was not included in the application for leave and upon which leave was granted. During the adjournment he formulated an amendment in writing thus: "5. The IO failed to take into account the fact that by refusing the applicant leave to enter instead of granting him a short leave, he thereby deprived the applicant of a right of appeal under section 14(1) of the Immigration Act 1971 which the applicant legitimately expected he would have by virtue of the visa exempt stamp and section 3(3)(b) endorsement, since but for his reliance on those stamps, he would not have left the United Kingdom, in the circumstances in which he did leave." Section 3(3) provides: "In the case of a limited leave to enter or remain in the United Kingdom:

. . .

(b) the limitation on and any conditions attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave." Section 3(4) is also of relevance: "A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country . . . 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; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply." Mr Riza submits that the combined effect of section 3(3)(b) and (4) and what he called the section 3(3)(b) stamp was an express intention on the part of the immigration authorities to facilitate re-admission and make it more likely. He accepts that by subsection (4) leave lapsed on leaving the country but that leave to re-enter was made, he submits, "more likely" by virtue of the stamp. In addition he submits that this applicant was "visa exempt". As a national of Pakistan by virtue of the appendix to HC 169 as amended by Command Paper 994 and HC 584 and HC 154, he was already exempt from a visa requirement. He was one of "those 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 to the subsequent leave." Thus, it is said, he had a right under section 3(3)(b) and he did not need the visa exempt stamp on the passport. In developing this argument he cited the decision of the Court of Appeal in Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. There the appellant was a Nigerian citizen who had been admitted to the United Kingdom as a visitor. She applied for a variation of leave to remain as a student. Her passport was stamped with the section 3(3)(b) stamp and endorsed "visa exempt". On arrival she was refused leave to enter, the immigration officer not being satisfied that she was a genuine student. It was argued before the court that she had legitimate expectation that she would be admitted. She had suffered detriment in that by the refusal of leave she lost any rights she would have to appeal while in the United Kingdom against a refusal of variation of leave to remain as a student. I shall refer to particular circumstances of this case at a later stage in this judgment. Suffice it to say that Mr Riza relies in particular upon the passage at page 141 which reads as follows, from the judgment of the Master of the Rolls: "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 . . . 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 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." After quoting rule 58, the Master of the Rolls continued: "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 leave 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." Counsel also placed reliance upon the unreported decision of Roch J in R v Secretary of State for the Home Department ex parte Mowla where an immigration officer refused a returning student leave to enter because he was not satisfied that the applicant was a genuine student who would leave the United Kingdom on completion of his studies. The immigration officer also concluded that he had reason to believe that the applicant had been working in breach of the conditions attached to his leave. The learned judge considered the decisions in Oloniluyi, ex parte Kuku and ex parte Balogun (the latter at first instance and in the Court of Appeal). At page 20 he continued: "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 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 Larkin . . . in Kuku's case that Mr Larkin 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 and 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." And later at page 22 the learned judge said: "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." Based on these dicta, Mr Riza submits that there is a fundamental distinction between a legitimate expectation that the visa national will not be refused entry and the expression "all the circumstances" in paragraph 58. The immigration officer must take into account the legitimate expectations and the representations that there will be "no problem on your return". The stamps generated such expectations and clearly contemplate that subsequent leave is likely and the stamps themselves give such an impression. If the immigration officers have not taken these factors into account, the decision is flawed. In the light of this argument which was presented with great skill by Mr Alper Riza, I have come to the following conclusions. Notwithstanding section 3(3)(b) and the "visa exempt" stamps on 26 April when he left the United Kingdom, the applicant's leave to remain lapsed. On his return on 23 May, he required leave to enter. On his arrival at Heathrow, paragraph 58 applied. He was a passenger whose stay was subject to a time limit and who was returning after a temporary absence abroad. He thus had no claim to admission as a returning resident. He had no right to re-enter. His application to re-enter fell to be dealt with in the light of all the relevant circumstances under paragraph 58. The enquiries conducted by the immigration officers revealed blatant breaches of the conditions attached to both of his previous leaves. Thus, not surprisingly, it was considered that it was "not more appropriate to treat him as a new arrival". By Rule 76 the immigration officer was entitled to refuse leave to enter once it had been proved to his satisfaction that the applicant had not observed the conditions imposed on his grant of leave to remain. It would also appear (although this was not advanced by Mr Sankey) that a previous leave to remain (that is, as granted in October 1988) had been obtained by deception in that he had not disclosed the breaches of conditions by taking employment during his currency of the earlier leave to remain. Thus the immigration officer was entitled to refuse because of a failure to observe. All the circumstances of the case included the conduct and attitude of the applicant when confronted with incontrovertible evidence of his breach of conditions. He denied that he had undertaken any employment. Then as each of the three employments was put to him, he maintained consistent prevarication, dishonesty and lack of co-operation. Thus the immigration officer was clearly acting within his powers in coming to the decision that he did. I cannot accede to Mr Riza's submissions that these were mere technical breaches of the conditions. They were not insignificant breaches which could and should have been ignored by the immigration officers. They were substantial and persistent breaches committed in the full knowledge that they were. I therefore reject Mr Riza's first submission. I now turn to counsel's argument as to the effect of the section 3(3)(b) endorsement which I shall call the "re-entry stamp", and the "visa exempt" stamp and the matters set out in the amended grounds. It is necessary in my judgment to look more closely at the precise effect of such stamps as it has emerged chronologically from previous decisions. The judgment of the Court of Appeal in Oloniluyi was given on 18 November 1988. The applicant was a citizen of a Commonwealth country, Nigeria. In November 1986 she visited Lunar House, an office of the immigration branch of the Home Office where, following a conversation with an official, a "visa exempt" stamp was affixed to her passport. It read, "The holder is exempt from requiring a visa for returning to the United Kingdom prior to 31st January 1987." A section 3(3)(b) "re-entry" stamp was also given. At this time HC 169 had been amended by Command Paper 9914 but citizens of Nigeria still did not need visas for the United Kingdom. By HC 154 Nigeria became a Commonwealth country whose citizens did require a visa as from 1 February 1987. Thus when one reads the dicta of the Master of the Rolls, one can see plainly that he was referring to a non-visa Commonwealth citizen. He was in effect saying that for a Commonwealth citizen who was then exempt from any visa requirement, there would be no problem in re-entering. The "visa exempt" stamp was not necessary and redundant when the applicant returned on 6 January 1987. The stamp was probably put on at Lunar House to emphasise to Ms Oloniluyi that she had to return before 31 January to benefit from the rules before they were changed on 1 February. Later, at page 144, 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." The court then went on to consider and decide that the fact that there was such an endorsement was a factor to be taken into account. R v Secretary of State for the Home Department ex parte Balogun [1989] Imm AR 199 came before Simon Brown J on 23 November 1988 (that is five days after the Court of Appeal decision in Oloniuyi). Here the applicants were Nigerian citizens. They both had extensions of leave to enter to pursue their studies. They sought leave to enter on 27 January 1988 and 27 July 1988, respectively. In each case his passport was endorsed with a "visa exempt" stamp and a re-entry stamp, although not in the same terms as in the current case. Thus the situation was well after the change in the rules. They were Commonwealth citizens who needed visas; they were Commonwealth Visa Citizens. It was submitted that the "visa exempt" stamp constituted evidence of their eligibility for entry into the United Kingdom within section 33(1) of the Immigration Act 1971. This submission was rejected. The learned judge found that the "visa exempt" stamp was not an entry clearance. It was no more than a declaration of the provisions of the rules that in certain circumstances citizens of Nigeria and some other countries did not require visas. He held that the immigration officer had had the power to refuse leave to enter. It is against this background that ex parte Mowla came before Roch J at the end of 1989 or early 1990. There the applicant was a citizen of Bangladesh who sought leave to enter on 7 September 1989. By Command Paper 9914 (as amended) citizens of Bangladesh need visas for the United Kingdom. They are thus in the same position as citizens of Nigeria and nationals of Pakistan (ie, he was a visa national). His passport was endorsed with a "re-entry" stamp and a "visa exempt" stamp. As I have already indicated, the learned judge considered the decisions in Oloniluyi, ex parte Kuku and ex parte Balogun at first instance and in the Court of Appeal and I have quoted at length the passages upon which Mr Riza relies. Mr Riza urges me to follow the reasoning of Roch J that by virtue of the stamps there was a legitimate expectation that the applicant, being a visa national, would not be refused entry provided he returned in the same capacity as that in which he had leave to remain in the United Kingdom. Alternatively, the presence of the stamps amounted to representations on the part of the immigration authority that the applicant "would have no trouble in returning to the United Kingdom" within the permitted period. I regret that I cannot accede to this submission. I do not regard the stamps as amounting to a legitimate expectation or a representation. If the passages in the judgment of Roch J which I have set out and upon which Mr Riza relies are based on or are paraphrase of the obiter dicta of the Master of the Rolls in Oloniluyi that the stamps "clearly indicate that there should be no problem in re-entering" then, with respect to Roch J, this passage must be considered in the light of three factors. First, the Master of the Rolls was referring to a Commonwealth non-visa citizen as opposed to a Pakistan national (ie, non-Commonwealth) citizen and thus a visa national. Second, the Master of the Rolls did not indicate that the words "clear indication" amounted to a legitimate expectation or even a representation to that effect. Three, the legitimate expectation was based exclusively on the assurances given by the official at Luanr House that she would be admitted without difficulty. It was not based on an interpretation of the stamps. Furthermore I consider I am bound by the reasoning of the Court of Appeal in ex parte Balogun that the visa stamp is merely declaratory and simply records the fact that a person is not subject to the disqualification for entry which lack of a visa would otherwise have imposed. It follows, in my judgment, that the immigration officer did not misdirect himself or overlook a legitimate expectation or representation. He merely had to consider the presence of the "visa exempt" stamp and the "re-entry" stamp as two of the relevant circumstances. Ms Eager specifically deposes to the fact that she saw the stamps and it is a fair inference on the totally of the evidence that the existance of the stamps was considered by the immigration officer along with the personal circumstances of the applicant and his wife. There is nothing on the stamp or in the rules which requires the immigration officer to trigger the procedure which would allow for an appeal in the United Kingdom rather than an appeal from outside the United Kingdom or to raise an expectation that, in the event of it being found that he had breached the conditions of his leave, he would be permitted to remain in this country for the purpose of appealing against a refusal of leave to enter. If I am wrong and the stamps do amount to a legitimate expectation or a representation, I consider it essential to consider its precise meaning or its extent. I would construe it not as conferring an exception that a returning student would be granted leave to enter as of right after a short visit abroad. In my judgment the legitimate expectation or representation would be to the effect that the returning student would not require a visa if returning to resume the leave granted to enable him to pursue his studies. It also follows from this analysis that I must reject the submission that the "visa exempt" stamp is requisite evidence of the applicant's eligibility to enter the United Kingdom. The Court of Appeal in Balogun expressly held that such a stamp could not be equated with an entry clearance. Mr Riza finally submitted that the decision of the immigration authorities was a disproportionate exercise of their powers. No consideration was given to the consequences of not allowing him to enter before lodging his appeal. In particular circumstances of his private life and the conditions of his wife, it would have been more humane to overlook the breaches and allow him to enter or to have taken the alternative course which would have entitled him to appeal against refusal to leave to enter before leaving the United Kingdom. It is true that in this particular case the decision would have created considerable hardship for the applicant. He would have had to return to Pakistan for the purpose of pursuing his appeal and his studies would have been interrupted at a critical stage. He would probably have had to leave his wife at a critical stage in her pregnancy. He had been a good student, his fees were paid, and he did not need to work because of the support given to him because his father who was also a resident in this country. It certainly would have been more humane to allow him to enter. However, the immigration officer had to weigh these factors against the persistent breaches of the leave to enter and the blatent dishonesty displayed by the applicant when confronted with the truth. I am quite unable to hold that the decision to refuse leave to enter was a disproportionate exercise of executive power. For these reasons, this application for judicial review must be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Namel de Silva & Co; Treasury Solicitor

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