R v. Secretary of State for the Home Department, Ex parte Girishchandra Punambhai Patel

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte GIRISHCHANDRA PUNAMBHAI PATEL

Queen's Bench Division

[1991] Imm AR 14

Hearing Date: 5 June 1990

5 June 1990

Index Terms:

Refusal of leave to enter -- student -- visit abroad during the period of limited leave -- refusal of leave to enter on return to United Kingdom -- immigration officer not satisfied applicant intended to follow a course which complied with the rules -- not satisfied applicant would leave the United Kingdom at the end of his studies -- whether immigration officer took into account all relevant circumstances. Immigration Act 1971 ss 3(1), 3(3): HC 169 paras 21, 22, 58.

Legitimate expectation -- applicant's passport contained ins 3(3)(b) and "visa exempt" stamps -- whether in the events which had happened the applicant had a legitimate expectation he would be re-admitted to the United Kingdom -- the ambit of the doctrine reviewed -- Oloniluyi and Mowla considered.

Held:

The applicant for judicial review was a citizen of India who had been a student in the United Kingdom since 1986: he had received variations of leave in that capacity, and his last period of leave would have expired in September 1989. In January 1989 he left the United Kingdom to visit his father who was ill in India: he returned to the United Kingdom in March 1989: he was refused leave to enter. His passport contained s 3(3)(b) and "visa exempt" stamps. Counsel argued that the applicant had had, on the basis of those stamps in his passport (and without more) a legitimate expectation that he would be re-admitted to the United Kingdom: he relied on Oloniluyi and Mowla. The immigration officer had failed to take into account, under paragraph 58 of the rules, all the relevant circumstances: in particular he had not taken into account the more favourable rights of appeal which the appellant would have had if granted even a short period of leave, and the compassionate circumstances that led to the applicant leaving the United Kingdom. Counsel also asserted that if by virtue of stamps in his passport a person were effectively discouraged from obtaining a visa then the immigration service would be estopped from refusing him leave in circumstances where he only had a right of appeal after leaving the United Kingdom. For the Secretary of State it was argued that in the events which had happened no legitimate expectation could have arisen that the applicant would be granted leave to enter. The court reviewed the development and ambit of the doctrine of legitimate expectation. It observed the distinction in the leading cases between those that were founded on instances of procedural impropriety and those where the principle operated substantively and not merely procedurally: in such cases, following Preston, it was necessary to show that the conduct of the respondent was equivalent to a breach of contract or a breach of representation. Held: 1. There was no evidence that the applicant had been discouraged from obtaining a re-entry visa: the argument that the immigration officer was thus estopped from refusing the applicant leave to enter failed in limine. 2. In the circumstances of the case, where no allegation was or could be made that there was any improper motive on the part of the immigration authorities or any misconstruction of their powers or duties, to succeed, it had to be shown that the stamps in the passport were a representation breached by the refusal of leave to enter. 3. It was impossible to elevate the s 3(3)(b) stamp and the "visa exempt" stamp into representations. Indeed the "visa exempt" stamp was not addressed to the passport holder at all, but to the immigration officer. 4. On a careful reading of the judgments in Oloniluyi it was clear that the Master of the Rolls based his judgment on two grounds: the "substantive legitimate expectation" ground and the "relevant circumstances" ground (with reference to paragraph 58 of HC 169). It was in connection with the second ground (of relevant circumstances) that the Master of the Rolls had observed that the s 3(3)(b) and visa exempt stamps should be taken into account, because of their apparent meaning to the average visitor. Dillon LJ clearly based his findings on legitimate expectation in that case, on the oral representations to the applicant, and not on the stamps in the passport. 5. It is clear that Mowla was wrongly decided: the s 3(3)(b) and visa exempt stamps could not alone found a legitimate expectation. 6. On the facts, the immigration officer could not be shown to have failed to take account of all relevant circumstances: the compassionate reasons advanced were related to the applicant's leaving the United Kingdom, not returning to it, and was not therefore in any event a relevant circumstance.

Cases referred to in the Judgment:

HTV Ltd v Price Commission [1976] ICR 170. R v Secretary of State for the Home Department ex parte Asif Mahmood Khan [1984] 1 WLR 1337: [1984] Imm AR 68. R v Inland Revenue Commissioners ex parte Preston [1985] AC 835: [1985] All ER 327. Adetutu Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. in re Wijesundera [1989] Imm AR 291. Bolanle Balogun v Secretary of State for the Home Department [1989] Imm AR 603. R v Secretary of State for the Home Department ex parte Mohammed Islam [1990] Imm AR 220. R v Secretary of State for the Home Department ex parte Abu Mowla [1990] Imm AR 224. R v Secretary of State for the Home Department ex parte Rab Sadiq [1990] Imm AR 364.

Counsel:

A Riza for the applicant; N Pleming for the respondent PANEL: Hodgson J

Judgment One:

HODGSON J: In this case the applicant seeks judicial review by way of certiorari backed by mandamus of a decision of an immigration officer of 20 March 1989 refusing to grant the applicant leave to enter. The grounds set out in the application have been elaborated by Mr Riza in argument but, at this stage, it is sufficient to note that the attack upon the decision is based on two grounds: the first that the immigration officer acted unfairly because of a "legitimate expectation" that the applicant is alleged to have had; the second that the immigration officer failed, in coming to his decision, to take into account all the relevant circumstances, as he was required to do by rule 58 of HC 169. It will be convenient to outline the immigration history of this applicant before considering the legal submissions made on his behalf. The applicant came to the United Kingdom on 10 June 1986 and was granted leave of entry as a visitor, later extended to 1 March 1987. He then received a further extension of leave as a student to expire on 30 June 1987. He did a language course which he completed on 28 November. He then began a computer course at an institution (if it can be so dignified) called Capital College. That course began in April 1987, so he was in its first year when his leave would have ended. He received further extensions and finally, on 28 December 1988, he was granted leave to remain as a student until 30 September 1989 so that he could complete the second year of his course. Stamps were placed on his passport. The first stamp to which I shall have to refer, after the leave to remain stamp dated 30 September 1989, reads: "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." That is known as the section 3(3)(b) stamp, and the third stamp reads: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before 30 September 1989." That is known as the visa exempt stamp. Shortly after this last grant of leave the applicant's father in India had a serious heart attack and, upon being informed of this, the applicant, under-standably and indeed commendably, returned to India to be with him. He left the United Kingdom on 25 January 1989 and returned to Heathrow Airport on 12 March 1989. In his first affidavit he deposes as follows: "6. . . . Having received my passport and the leave to remain until September 1989 I had absolutely no reason to believe that I would have any problems upon my return from India . . . 7. . . . I did not have any documentation with me because I was under the impression that there would be no difficulty in returning to the United Kingdom having regard to the three endorsements I referred to above." Those are the three endorsements on the passport. On his return the applicant was twice interviewed, once on arrival and once, eight days later, on 20 March. An account of what took place is contained in the affidavit of the immigration officer Mr Davies, at pages 28-30 of the bundle, and his report at pages 32-34. On 20 March, after the second interview, the applicant was served with a notice of refusal of leave to enter in these terms: "You have asked for leave to enter the United Kingdom in order to continue your studies at Capital College but I am not satisfied that you intend to follow a full-time course of organised daytime study. Furthermore I am not satisfied that you are a genuine student who will leave the United Kingdom on completion of your studies." Save that Mr Riza contends that, in coming to this decision, the immigration officer did not take into account two "relevant circumstances". I do not understand it to be argued, and certainly do not consider that, on the facts, it could be argued that the decision to refuse leave to enter could be said, in review proceedings, to be irrational. Before I turn to deal with the submissions made by Mr Riza in attacking this decision, it will be convenient to set out what is undisputed as far as the law is concerned: 1. The applicant needed leave to enter the United Kingdom which leave could be either for a limited or indefinite time and subject to conditions. (See Immigration Act 1971 s 3(1)). 2. Section 3(3) provides: "In the case of a limited leave to enter or remain in the United Kingdom, -- (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (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 to may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave. (4) 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 (whether or not he lands there), 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." 3. Even though the applicant had obtained leave on 28 December 1988 that leave lapsed under section 3(4) so that he again needed leave to enter when he returned on 12 March 1989. This is so even if he has on his passport the stamps before referred to. (See Wijesundera [1989] Imm AR 291.) 4. A visa "exempt stamp" is not the equivalent of an entry clearance or visa. (See Bolanle Balogun v Secretary of State for the Home Department [1989] Imm AR 603.) 5. Accordingly, the applicant cannot appeal to an adjudicator against the refusal without first leaving the United Kingdom. In other words he cannot avail himself of the proviso to section 13(3) of the Immigration Act on the basis that "he was refused leave at a port of entry . . . at a time when he held a current entry clearance". 6. The immigration rules relevant to students can be conveniently found in Macdonald Immigration law and practice at page 528 of the second edition. They are paragraphs 21 and 22. I do not think I need to refer to them in detail. 7. Paragraph 58 of the rules reads: "A passenger whose stay in the United Kingdom was subject to a time limit and who returns from 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 him as a new arrival." It is clear that under that rule the immigration officer has two alternatives; it is also clear that, in this case, the immigration officer considered it more appropriate to treat the applicant as a new arrival. How then comes it about that the applicant was given leave to challenge the immigration officer's decision in judicial review proceedings? Rather than refer to the formal grounds I set out the propositions advanced in argument by Mr Riza: 1. The two stamps placed on the passport on 28 December 1988 raised a legitimate expectation. 2. The expectation was that leave to enter was especially in regard to the section 3(3)(b) endorsement. 3. The scope of what a passenger can legitimately expect is: (a) that the immigration officer will not refuse him leave to enter merely because, on the same or substantially the same material as was before the Home Office when he was granted leave, he takes a different view; (b) that the immigration officer will not refuse leave to enter unless there is new information of a serious and compelling nature such as would have justified a revocation of the earlier leave. (There is, in fact, no power to revoke a leave contained in the Act; section 3(a) allows only variation by restricting the duration of leave, which, of course, could amount to complete curtailment. We shall see later whence the word "revocation" stems.) 4. The immigration officer failed to take "all relevant circumstances" into account as he was required to do by rule 58. The circumstances not taken into account were: (a) The more favourable rights of appeal that the applicant would have had if he had been admitted even for a short period in comparison with the essentially illusory right of appeal which arose on refusal. (A person in the United Kingdom with leave can appeal under section 14 without leaving the United Kingdom.) (b) The compassionate circumstances which led to the applicant leaving the United Kingdom. There is a last proposition made which no amount of ingenuity can read into the grounds. It is: 5. If a person by virtue of the two stamps is effectively discouraged from obtaining a visa then the immigration service is estopped from refusing him the leave he seeks in circumstances where he only has a right of appeal after leaving the United Kingdom. It will be convenient to deal with this last ground here. It fails in limine because there is no evidence whatsoever that the applicant was in any way so discouraged. It did however lead to a debate which may be thought to be of interest to those advising immigrants. Mr Riza told me that an immigrant leaving the country for a period during the currency of his leave could obtain a visa in England. Mr Pleming and those instructing him could neither confirm nor deny this. If it is right then anyone with leave might be well-advised to obtain a visa before leaving the United Kingdom so as to preserve if necessary, his United Kingdom right of appeal. I now return to the applicant's main ground which is based upon the principle of public law which has been christened by Lord Diplock as "legitimate expectation". The principle arise in the context of natural justice or, in modern terminology, procedural impropriety. Indeed, as Professor Wade points out, it was for the purpose of restricting the right to be heard that "legitimate expectation" was introduced into the law. (See Administrative law (sixth edition) 522 and the cases there cited.) Professor Wade deals with the cases where what Lord Bridge termed "the novel doctrine" has been invoked. They are all concerned with procedure not rights. R v Secretary of State for the Home Department, ex parte Asif Mahmood Khan [1984] 1 WLR 1337 looks at first sight as if the doctrine might be giving a substantive rather than a procedural right, but reference to the report shows that it was a legitimate expectation that the "procedures" outlined in the circular would be implemented. I would however have expected that any attack upon the decision based upon the stamps would have been founded on the principles enunciated by the House of Lords in R v Inland Revenue Commissioners, ex parte Preston [1985] AC 835. It is true that Professor Wade, who deals with the principle in Preston under irrationality, conflates it with the principle of legitimate expectation in procedural matters but he makes clear that, in this context, the principle operates substantively not merely procedurally. Having considered a number of decisions, some of which are further considered under his rubric "The Right to a Fair Hearing", he wrote, at page 424: "These are revealing decisions. They show that the courts now expect government departments to honour their published statements or else to treat the citizen with the fullest personal consideration. Unfairness in the form of unreasonableness here comes close to unfairness in the form of violation of natural justice, and the doctrine of legitimate expectation can operate in both contexts. It is obvious, furthermore, that this principle of substantive, as opposed to procedural, fairness may undermine some of the established rules about estoppel and misleading advice, which tend to operate unfairly. Lord Scarman has stated emphatically that unfairness in the purported exercise of a power can amount to an abuse or excess of power, and this seems likely to develop into an important general doctrine." It is clear that in most of such cases there will be some "proven element of improper motive". (See Lord Templeman in the Preston case at page 864.) However, as Lord Templeman pointed out, in HTV Ltd v Price Commission [1976] ICR 170 improper motive is not an essential element in this form of unfairness. In Preston, at page 866G he said this: "In the present case, the appellant does not allege that the commissioners invoked section 460 for improper purposes or motives or that the commissioners misconstrued their powers and duties. However, the HTV case and the authorities there cited suggest that the commissioners are guilty of 'unfairness' amounting to an abuse of power if by taking action under section 460 their conduct would, in the case of an authority other than Crown authority, entitle the appellant to an injunction or damages based on breach of contract or estoppel by representation. In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole remedy and an appropriate remedy. There may be cases in which conduct which savours of breach of contract or breach of representation does not constitute an abuse of power; there may be circumstances in which the court in its discretion might not grant relief by judicial review notwithstanding conduct which savours of breach of contract or breach of representation. In the present case, however, I consider that the appellant is entitled to relief by way of judicial review for 'unfairness' amounting to abuse of power if the commissioners have been guilty of conduct equivalent to a breach of contract or breach of representations on their part." It is clear that Mr Riza must be relying upon the substantive application of the "legitimate expectation" principle. (It is noteworthy that the phrase itself finds no mention in either of the speeches in Preston.) It is also clear that there is no question of improper motive or misconstruction by the immigration authorities of their powers and duties. It follows that Mr Riza has to establish that the conduct of the respondent is equivalent to a breach of contract or a breach of representation. The representation relied upon is the two stamps, the breach the refusal of entry. To elevate these two stamps into the representations said to have been made seems to me to be an impossible task. The most the "visa exempt" stamp tells the passport holder is that he does not need a visa, and the section 3(3)(b) stamp plainly tells him that he will need leave if he returns within the period and that the same conditions will apply unless superseded. In fact, in my judgment, the visa exempt stamp is not, as it were, addressed to the passport holder at all, but to the immigration officer. I do not think they can possibly amount to representations such as could amount to estoppel by representation. I have intentionally considered this case so far on the basis of what I take to be settled principles of public law. I have done so because the decision of the Court of Appeal upon which the applicant mainly relies has given rise to conflicting decisions by judges in this jurisdiction. In Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135 the Court of Appeal held that the refusal of leave to enter by an immigration officer was unfair. The facts are set out in the headnote: "Appeal from Macpherson J. 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. While that application was still under consideration she visited Lunar House: she wished to return to Nigeria for Christmas. Her passport was stamped with the normal s 3(3)(b) stamp, and endorsed to indicate she would not require a visa for re-entry to the United Kingdom before 31 January 1987, to which date her leave was extended. According to her affidavit evidence, which the court accepted, she was verbally assured by an official at Lunar House that she would have no difficulty in returning to the United Kingdom. On arrival early in January 1987 she was however refused leave to enter, the immigration officer not being satisfied she was a genuine student. It was argued before the Court that in the events which had happened she had had a legitimate expectation that she would be admitted. She had suffered detriment in that by the refusal of leave she had lost any right she would have had to appeal, while in the United Kingdom, against a refusal of variation of leave to remain as a student." What the applicant's actual evidence in that case was appears at page 138: "I told the official that I was going to Nigeria for the Xmas holiday. He told me that I would have no trouble in returning to the United Kingdom as long as I came back before the 31 January 1987 when my leave expired." The court held: "1. The assurances that she had been given had created a legitimate expectation that she would be admitted without difficulty. The refusal of leave to enter was unfair: per Dillon LJ, 'the official at Lunar House had power to give some assurance to the appellant.' 2. However, the extension of leave to 31 January 1987 did not itself per se give rise to a legitimate expectation that she would be given leave to enter on her return, nor could the endorsement indicating that she did not require a visa be itself equated with a visa. 3. On the basis of the assurances given to the appellant she had acted to her detriment: by leaving the United Kingdom and then being refused re-admission she had lost those rights of appeal she would have had, while in the United Kingdom, against any refusal of variation of leave as a student. Moreoever she had incurred the odium of a refusal of leave to enter on her immigration record. 4. The Secretary of State had relied on paragraph 58 of HC 169, maintaining that an immigration officer had an unfettered discretion to treat a passenger returning from abroad during the currency of earlier leave, as a new arrival. However per Lord Donaldson MR that 'would only be appropriate . . . if this would lead to his being treated more favourably than would otherwise be the case or if it was clear he was returning in a new capacity or if information were available which would . . . justify the revocation of the earlier leave.'" There were two judgments, one by the Master of the Rolls and one by Dillon LJ. Staughton LJ agreed with both. It is perfectly clear that Dillon LJ based his decision entirely on an application of the substantive operation of the "legitimate expectation" principle. At page 146 he said: "It is accepted . . . 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." Mr Pleming does not accept that the concession in the first sentence was properly made. But the second sentence clearly shows that Dillon LJ was treating the oral representation made by the official as one giving rise to the equivalent of an estoppel by representation. The Master of the Rolls however gave a second reason for allowing the appeal. It is from what I believe to be a misunderstanding of that judgment that the difficulties, to which I shall have briefly to refer, have arisen. Having set out the facts and reminded himself that it was not for the court to substitute its view for that of the immigration officer, he continued at page 141: "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 that 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." In that passage the Master of the Rolls clearly sets out the two grounds which he is going to consider, namely the "substantive legitimate expectation" ground and the "relevant circumstances" ground. He then set out the provisions of rule 58 and considered the two options open to the immigration officer. I shall return to that passage in a moment, but then, having dealt with the two options, he continued at page 142: "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 that passage, and that is the second citation, the Master of the Rolls is clearly dealing, and only dealing, with the relevant circumstances ground. He then, in the next paragraph, made his finding: "I would allow the appeal and quash the decisions of the immigration officer to refuse leave to enter and the Minister's decision to make arrangements for the applicant to be returned to Nigeria upon the grounds that the decisions were reached unfairly and involved a failure to take account of relevant circumstances contrary to rule 58 of the immigration rules." Clearly in that passage he was making separate findings on both grounds, although he had not given further consideration to the first ground. It was one passage in the Master of the Rolls' consideration of the relevant circumstances ground which has, in my judgment, led one judge into error. In holding that the stamps were a relevant circumstance, which ought to have been taken into account, he said that this was because they would "clearly indicate to the average visitor that there should be no problem in re-entering this country . . . even without account being taken of what the official at Lunar House is alleged to have said". In R v Secretary of State for the Home Department, ex parte Mowla, [1990] The Times Law Reports 29, Mr Riza persuaded Roch J that the Master of the Rolls would have found that the stamps alone amounted to a representation giving rise to an estoppel and, on that basis, Roch J found that they did. With great respect I think that, in so reading the Master of the Rolls' judgment and in so holding the learned judge fell into error. I have already said that, in my judgment, the stamps alone could not possibly be held to amount to a representation giving rise to an estoppel on established rules of public law. Two other judges have given consideration to the decision in Oloniluyi. In R v Secretary of State for the Home Department, ex parte Islam (unreported CO/767/88) an attempt was made to bring the applicant's case squarely within the facts in Oloniluyi. However Simon Brown J found that there was no oral assurance in that case. He went on to reject also a "relevant circumstances" submission. He did not specifically deal with the argument (I do not think it was advanced) that the stamps alone could found a "substantive legitimate expectation" submission. In Sadiq (unreported CO/1061/89), Otton J gave careful consideration to all the decisions and concluded, in my respectful opinion correctly, that, inter alia, the stamps did not give rise to any legitimate expectation. I can deal briefly with Mr Riza's argument on relevant circumstances. So far as the first is concerned it assumes that the immigration officer did not have the legal position as to appeal in mind when he made his decision. I do not think that is sustainable and, in any event, the immigration officer deposed that he "took fully into account the other stamps in his passport" (page 30) and, on review, the decision in Oloniluyi was specifically considered and, in my judgment correctly, distinguished. The compassionate ground related to the applicant's leaving the United Kingdom, not returning to it and was not a relevant circumstance for the immigration officer to take into account. For these reasons this application fails.

DISPOSITION:

Application dismissed

SOLICITORS:

McGrath & Co, Birmingham; Treasury Solicitor