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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte PULGARIN

Queen's Bench Division

[1992] Imm AR 96

Hearing Date: 2 September 1991

2 September 1991

Index Terms:

Judicial review -- whether appropriate -- refusal of leave to enter -- student -- Colombian national -- sought leave to study English -- whether the applicant's circumstances constituted "exceptional circumstances" justifying leave to move for judicial review -- whether applicant should appeal to an adjudicator. Immigration Act 1971 s 13(3).

Held:

The Secretary of State applied for the leave previously granted ex parte to move for judicial review, to be set aside. The applicant for leave was a Colombian national who had arrived in the United Kingdom without entry clearance and sought leave to enter to study English. He was refused leave to enter. It was argued by counsel that it would be exceedingly inconvenient for the applicant to be obliged to return to Colombia, his academic career would be interrupted, and there would be difficulties with his children. For the Secretary of State it was argued that none of the matters put forward on behalf of the applicant for judicial review, took him outside the ambit of the rule in Swati. Held 1. Applying the principles of Swati and Grazales to the instant case, the circumstances of the applicant fell far short of being "exceptional circumstances" justifying granting leave to move for judicial review. 2. The leave granted would be set aside.

Cases referred to in the Judgment:

Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88. Jorge Grazales v Secretary of State for the Home Department [1990] Imm AR 505. Soon Ok Ryoo v Secretary of State for the Home Department [1992] Imm AR 59.

Counsel:

C Mailer for the applicant; R Jay for the respondent PANEL: Popplewell J

Judgment One:

POPPLEWELL J: This is an application by the Secretary of State to set aside leave granted in this case for the applicant to pursue a claim for judicial review by Rose J on 10 July 1991. The application to move for judicial review was against a decision of the Secretary of State refusing entry to the applicant on the ground that the Secretary of State was not satisfied he was a genuine student who would leave the United Kingdom on completion of his studies. The necessary facts which arise in this case are these. The applicant is a Colombian national and had been pursuing a course of studies in Colombia leading to a qualification in hotel management and tourism. His course was a three year course. He had apparently satisfactorily completed two years of the course. It was thought, no doubt sensibly, that it would greatly enhance his employment prospects to attain fluency in English. To that end, it is said he came to this country to pursue a course here in English to enable him to resume his academic course in Colombia in February 1992. The law is not in dispute. Section 13(3) of the 1971 Act provides that a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom. There are other provisions which do not apply. This applicant did not hold a current entry clearance and, therefore, unless there were exceptional circumstances he is required to pursue his alternative remedy by way of appeal and not by way of judicial review. There is no dispute about what the authorities say. The approach of the courts to what are exceptional circumstances have been set out in a number of cases. It is impossible to define precisely what they mean. Mr Mailer drew my attention to a decision (unreported) of the Court of Appeal in the case of R v Secretary of State for the Home Department ex parte Soon Ok Ryoo (See now [1992] Imm AR 59). He observed that the facts of that case were far distant from the facts of the instant case, and I accept that submission. It is, however, the principle involved which is germane to the judgment in the instant case. Russell LJ observed, in reliance on what had been said in Swati, that it is impossible to define precisely what constitutes exceptional hardship. The normal case, say, of any student coming to this country who is refused entry on the basis that he is not regarded as an ordinary student will be to require him to expend a considerable amount of money to return to his own country and to come back again for the appeal; it may well be to interrupt either his studies in his own country or, if he is eventually allowed in to study here, his studies here. So there is nothing exceptional in the very great inconvenience which is caused to any applicant in the position of this applicant. What is said in the instant case is that the difficulties are so great that in fact the right of appeal would be destroyed and would have been of no effect. What Mr Mailer relies on are the following facts. First, this is a 32 year old man who has interrupted his course in Colombia with the result that he will have lost a year in his academic life which he can ill afford. He has two comparatively small children for whom he is responsible and his absence from them is a matter which is of great significance because it is necessary for him to start working as soon as possible to provide for his children, and, additionally, his absence from them coming and going would be likely to cause them a good deal of upset. Next, he has in fact been studying at the Edgware College here, he has made good progress and indeed, having been released in June of this year, he has been pursuing his course vigorously and effectively. Finally, there is observed that the financial cost of returning is quite substantial. All those matters are urged upon the court as taking this out of the normal position of somebody who arrives in this country and is refused entry. I have to say I do not find that those facts are within the phrase of "exceptional circumstances". My attention was drawn to what was said in the case of Grazales [1990] Imm AR 505 at page 507 where Purchas LJ said this: "Although Mr Syril has said that there are difficult circumstances in Colombia, the burden of his submissions was that it was highly desirable that the applicant should follow a course of English in this country, that he was a genuine student, that he had complied with the technical requirements and, therefore, he was an exceptional case so as to bring him within the approach recognised in Kharazzi [1980] 1 WLR 1396. In my judgment that is a misunderstanding of the nature of the exceptional circumstances envisaged in the authorities to which I have referred. The exceptional circumstances must be germane to the decision as to whether or not the applicant ought to follow the normal rule and make his appeal to an adjudicator in accordance with the provisions of the Act. There was nothing shown in the evidence exhibited to the application to demonstrate that there was any danger or practical obstacle to this applicant returning to Colombia and pursuing the normal procedure of appealing under section 13." Applying that to the facts of the instant case I have to say that while I have no doubt it will be exceedingly inconvenient to this applicant to return to Colombia, to have his academic progress interrupted and to have the problems with his children, they do not start, in my judgment, to constitute exceptional circumstances which are necessary in order to avoid the provisions of section 13. Accordingly I shall grant the Secretary of State leave to set aside the leave granted in this case.

DISPOSITION:

Leave to move for judicial review set aside

SOLICITORS:

Durnford Ford, London WC2; Treasury Solicitor

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