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

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

Queen's Bench Division

[1994] Imm AR 58

Hearing Date: 30 July 1993

30 July 1993

Index Terms:

Leave to enter -- refusal -- return by applicant during currency of earlier leave -- whether terms of notice on abolition of re-entry visas gave applicant a legitimate expectation she would be re-admitted -- legal representative excluded from interview -- discretionary power of immigration officer -- how it must be exercised. Immigration Act 1971 sch 2 para 2.

Held:

The applicant for leave to move for judicial review was a citizen of Ghana who earlier had been granted variation of leave as a working holidaymaker. At that time she had been sent a notice, in common form, about the abolition of re-entry visas. She returned to Ghana for a brief visit: when she arrived back in the United Kingdom she was refused leave to enter. The immigration officer concluded, in terms, that she was not intending to return as a working holidaymaker. Before being refused leave to enter, the applicant was interviewed on three occasions. A legal representative was present at one interview, but the chief immigration officer refused to allow him to be present at the third interview. In seeking judicial review counsel argued that on the facts, the refusal of leave was unjustified: the notice she had received concerning re-entry visas had given rise to a legitimate expectation that she would be re-admitted: the refusal by the chief immigration officer to allow her representative to be present at the interview had been procedurally improper. Held 1. Following Swati the resolution of the factual issues raised was not a matter for judicial review. 2. The notice sent to the applicant and concerning re-entry visas made it clear that persons arriving in the United Kingdom during the currency of earlier leave would be examined to determine whether they qualified for re-admission: no legitimate expectation could therefore arise that a passenger would be admitted. 3. A person seeking leave to enter had no right to have a legal representative present during an interview. An immigration officer had a discretion to permit or refuse to allow a representative to be present. It followed that the discretion had to be exercised properly -- which on the facts it had been.

Cases referred to in the Judgment:

R v Huntingdon District Council ex parte Cowan [1984] 1 WLR 501: [1984] 1 All ER 58. Taj Mohd Swati v Secretary of State for the Home Department [1986] 1 WLR 477: [1986] Imm AR 88. Badrul Bari v Immigration Appeal Tribunal [1987] Imm AR 13.

Counsel:

K Hammond for the applicant; R Singh for the respondent PANEL: Sedley J

Judgment One:

SEDLEY J: The applicant in this case came into the United Kingdom on 4 July 1993 from Ghana with six months leave to remain. Within those six months she applied for and obtained leave to remain for a working holiday until 7 January 1995 under the working holidays scheme for commonwealth citizens. At that time she was sent a notice headed, "Abolition of Re-entry Visas" which stated in relation to persons who, like the applicant, had more than six months leave for a stay: "Under the new scheme such persons will not be required to present a visa if they depart from the United Kingdom and return within the period of their original leave. They will, however, be liable to examination at the port of entry to confirm that they qualify for re-admission." In May 1992, the applicant made a return visit to Ghana and went through a traditional engagement ceremony even though her fiancé was studying in Australia at the time. She then returned to the United Kingdom to continue her working holiday. Although given temporary leave to enter she was re-interviewed twice, once on 7 June, once on 16 June. Then, at a third and final re-interview on 30 June 1993, two things happened. First, the immigration officer refused to allow her to be accompanied and, if necessary, assisted by Mr Samuel Yaw Bekoe, a practising barrister and voluntary adviser who had travelled to Stanstead for the purpose. The senior immigration officer, Mr Clarke, to whom Mr Bekoe protested, upheld the refusal on the grounds that according to Mr Bekoe, the applicant was an ordinary passenger. Secondly, at the interview, the immigration officer, Mr Wright, formed a view which he communicated to the applicant in writing (I quote from the notice of refusal): "You have asked for leave to enter the United Kingdom in order to resume a working holiday but I am satisfied neither that you are now genuinely seeking entry for this purpose nor that you intend to return to Ghana to settle there at the end of any working holiday which you might undertake. You have also sought entry to the United Kingdom to wait here whilst you apply for and obtain an Australian visa but there is no provision for this within the Immigration Rules. Finally I have reason to believe that your true purpose is to enter the United Kingdom as a visitor but I am not satisfied that there is any finite period attached to your proposed stay." The notice went on to spell out the applicant's right of appeal, but only when she had left the United Kingdom. For the applicant, Mr Hammond now contends in support of his application for leave to move for judicial review of the refusal: (a) That on the material before the immigration officer he must have misdirected himself as to the true meaning of a working holiday within the immigration rules or have come to an entirely baseless conclusion that the applicant did not intend to leave at the end of it or both. He relied on the decision of the Court of Appeal in Bari [1987] Imm AR 13; (b) That the applicant had a legitimate expectation that she could re-enter during the currency of her extended leave to remain without a visa or that if she was refused leave to remain she might appeal to an adjudicator without first leaving the United Kingdom; (c) That the immigration officer's decision was vitiated by unfairness in refusing to let Mr Bekoe attend and assist the applicant at the crucial interview on 30 June 1993. As to point (a), there is, in my view, no escape here from the principle established by the case of Swati. Barring exceptional circumstances, the court's discretion should be used to refuse leave where a regular means of appeal is open even if the rules require that appeal is to be conducted from abroad. Today, Mr Hammond has drawn my attention to a decision of Glidewell J (as he then was) in R v Huntingdon District Council ex parte Cowan [1984] 1 WLR 501 and, in particular, to a passage at 507 where Glidewell J applied a broad test of effectiveness and convenience as between judicial review and the alternative form of recourse. Even if I apply that test to this case without regard to Swati, upon the working holiday question there is manifestly, on the material before me, a welter of fact and judgment of fact which this court cannot assess effectively or conveniently, but which the adjudicator can. However, even if it were not so, the broad discretion described and exercised in one way by Glidewell J in ex parte Cowan is conditioned, so far as I am concerned, by the decision of the Court of Appeal in Swati, creating, in my judgment, a hurdle on point (a) which Mr Hammond is not able to get past. As to point (b), legitimate expectation, the wording of the note -- which I have quoted -- made it quite clear that while a visa will not be required for re-entry, re-examination as to the purpose of entry was not to be waived in such cases as the applicant's. There is no basis in that wording for either of the expectations upon which Mr Hammond submits that the applicant might legitimately rely. The converse, in my view, is not arguable. As to point (c), however, it seemed to me on first hearing this application for leave that different considerations might arise. Auld J, on 9 July 1993, had adjourned this application for the Home Office to be represented. On the adjourned hearing before him, on 26 July, the Home Office filed evidence which, however, did not deal with this point. Mr Singh for the Home Office submitted there was no evidence beyond the bare fact that this immigration officer had refused to let Mr Bekoe attend the interview with the applicant so that no prima facie case of error could be raised in the absence of a right to legal representation which Mr Hammond, very rightly, did not advance. Mr Hammond's submission, however, seems to me to be an important one. The fact that an applicant has no right to legal representation does not mean that the immigration officer does not have a discretion to allow it. If then the immigration officer does have such a discretion, he must clearly exercise it on proper and relevant grounds. Since it is only the immigration officer who will know what those grounds were and whether he exercised a discretion at all, I was extremely unwilling to let the application for leave go off on the want of evidence which it was within only the Home Office's power to supply. I further adjourned the application to allow the Home Office, if so advised, to put in evidence as to whether the immigration officer considered himself to have any discretion to allow representation and, if he did, on what basis he exercised it in this case. There is today before me a fresh affidavit of Michael Leslie Clarke, the chief immigration officer on duty at the time, who has deposed to the fact that it was to him that the immigration officer, Mr Wright, turned and from him that the decision came that Mr Bekoe should not be admitted. The reasons which he gives are, in short, that he recognised perfectly well that he had a discretion and that Mr Wright, similarly, had a discretion to admit a legal representative; a discretion which, according to Mr Clarke, was frequently exercised in favour of the passenger. In this case, however, there was a history (and the notes of interview are exhibited in support of it) of different reasons being given as at June 1993 for the original entry of the applicant to this country. In short, without going through the detail of it, there was material before the immigration officer which now suggested that, from the start, the applicant's reason for seeking entry to the United Kingdom had been to be able to make an application for an Australian entry visa to go and join her fiancé who was a student in Sydney, rather than to have a working holiday. It appears that the diplomatic representation of Australia in Ghana is such that it is difficult or impossible to make such an application there, whereas from London it can be made conveniently. That being so, the decision of Mr Clarke was that it would be more appropriate to interview the applicant on her own at the third re-interview on 30 June. It is deposed to, and not contested, that at the earlier interview, on 16 June, a legal representative had in fact been present and allowed to assist the applicant on that occasion. Mr Howard, who has also sworn evidence for the Home Office, exhibits to his affidavit notes of the interview on 30 June. They appear to have covered the ground which it was intended they should cover in exploring the apparent contradictions in the applicant's various statements of her original purpose and her current purpose. It is sufficient for me to say that on this evidence, which is not contested and indeed really is not able to be contested by the applicant, it is clear that the immigration officer recognised that he had a discretion and that he turned to the chief immigration officer for advice as to how to exercise it. The effective decision was then taken by the chief immigration officer and it was the conscious exercise of a discretion, not based, on the evidence, on any irrelevant grounds or on any legally incorrect appreciation of what the power was or how it might be exercised. The remaining issues, which arise from the exhibited notes and on which Mr Hammond has addressed me, all go back to the question of the immigration officer's appraisals of fact. The result of those appraisals of fact I have now indicated and they are appraisals which were open to the immigration officer on the material before him. They may very well represent a harsh reading of the facts from the evidence, but whether that is so is classically a question for re-appraisal by the immigration adjudicator. It is certainly not evident from the material that is now before me (which is, I apprehend, as full as it would ever be on a full application for leave) that the immigration officer did adopt or must have adopted a wrong meaning of the phrase "working holiday" in the immigration rules. Further submissions as to proper construction and application of that definition can, of course, be made to an adjudicator; it can be submitted to him that in the light of it the facts as he re-appraises them should lead to the re-admission of the applicant. But, for the present, it is sufficient for me to say that any motion for judicial review for which I were now to give leave would simply rehearse those arguments before a court which is a tribunal of law, not of fact, and would be doomed to fail so far as the issues are issues of fact. It is moreover doomed to failure, in my judgment, on the natural justice point. It appears from the evidence that although there might have been something in it, in the event there is not. I therefore propose to refuse this application for leave. The applicant has the comfort that, in the capable hands of Mr Hammond, all the relevant evidence and documents have been put before the court and have now been explored between the parties. However, there is not, in my judgment, an arguable case on any of Mr Hammond's heads for which it would be appropriate to grant leave.

DISPOSITION:

Application dismissed

SOLICITORS:

Pavarn & Co; Treasury Solicitor