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

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

Queen's Bench Division

[1994] Imm AR 261

Hearing Date: 14 January 1994

14 January 1994

Index Terms:

Student -- visa national -- leave to enter secured as visitor -- variation of leave as student refused -- whether "should" in the relevant immigration rules was mandatory -- whether in any event the Secretary of State was obliged to exercise a discretion under the provisions of the 1971 Act. Immigration Act 1971 ss 3(2), 3(3)(a), 4(1): HC 251 paras 95, 97, 111.

Held:

The applicant for judicial review was a young citizen of Uganda who was granted leave to enter the United Kingdom as a visitor. His father, resident in the United Kingdom then decided the applicant should attend school in the United Kingdom. An application for variation of leave as a student was made: it was refused, in accordance with the provisions of paragraph 111 of HC 251: the applicant was a visa national and the rule stated that a person in his circumstances, not granted a visa as a student "should be refused an extension of stay for the purpose of studying". An adjudicator dismissed an appeal, holding that the requirement of the rule was mandatory. The Tribunal refused leave to appeal. The Secretary of State maintained the refusal, despite representations. Counsel argued that "should" in the relevant rule was not mandatory: in that regard he sought to rely on the use of the word "curtail" in a ministerial statement on the rule when it was introduced. He also submitted that under the provisions of the 1971 Act the Secretary of State was in any event required to exercise a discretion in every application for variation of leave, irrespective of the contents of a particular immigration rule. Held 1. The wording of paragraph 111 of HC 251 was unambiguous: recourse could not therefore be made to Hansard as an aid to its interpretation, but in any event the ministerial statement did not as a matter of language support counsel's contention. 2. In paragraph 111 of HC 251 "should" was mandatory. It could not be read as "should normally". 3. As to the Secretary of State's discretion, counsel's submission confused two issues: what may be the lawful content of an immigration rule and whether the Secretary of State had a discretion to act outside the provisions of a rule, which clearly he had.

Cases referred to in the Judgment:

British Oxygen Co Ltd v Ministry of Technology [1971] AC 610: [1970] 3 All ER 165. Pearson v Immigration Appeal Tribunal [1978] Imm AR 212. Pickstone v Freemansplc [1989] AC 66: [1988] 2 All ER 803. R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1992] Imm AR 554. Pepper v Hart [1993] AC 593: [1993] 1 All ER 42.

Counsel:

S Hussain for the applicant; I Ashford-Thom for the respondent PANEL: Laws J

Judgment One:

LAWS J: This is an application for judicial review of a decision by the Home Secretary to refuse a variation of leave to remain to the applicant, Mr Okello. The decision impugned is contained in a letter to a Member of Parliament written on 5 October 1992. The application is brought with leave granted by the Court of Appeal. The relevant facts are as follows. The applicant was born in Uganda and is now some 21 years old. His father came to this country in 1981 and has resided here ever since. His son joined him in June 1991 and was at that stage granted leave to enter the country as a visitor for some six months. He had obtained a visitor's visa from the British High Commission in Nairobi. The time came later that year when, perhaps because of his father's ambitions for him, an application was made to the Secretary of State to vary his leave to allow him to remain here as a student. His father was a doctor working in the Isle of Wight and desired that his son should go to secondary school there. That application was refused on 2 December 1991. The ground for refusal was expressed in these terms: "Doctor John Ayeni has applied on your behalf for leave to remain as a student. However, you were admitted to the United Kingdom on 7 June 1991 as a visitor holding a single visit visa. Student status is a category for which an entry clearance, obtained prior to entry is necessary and you were not admitted with such an entry clearance." The applicant appealed to an adjudicator. Before indicating the result of that appeal I should set out the terms of the immigration rule which the adjudicator, as I shall show, applied and whose interpretation has been the subject of argument before me. Rule 111 of HC 251 is as follows: "Subject to paragraph 115, a person who is a foreign national or Commonwealth citizen specified in the Appendix who did not enter the United Kingdom with an entry clearance as a student or prospective student should be refused an extension of stay for the purpose of studying." It is not necessary to go to the appendix to the rules because there is no dispute but that on the face of it the rule applied to the applicant's case. The adjudicator dismissed the appeal, holding as follows: ". . . as I see the matter, the Secretary of State acted correctly within the rules in refusing the application, as the appellant, no matter where he may have lived prior to his coming to the United Kingdom was, as was his father, a citizen of Uganda with intentions of eventually returning to Uganda, and came within the terms of Paragraph 111 of HC 251, which I consider to be mandatory in their import. I have taken account of the authorities cited to me on the matter by Mr Husain, but I do not find that they are completely relevant in the circumstances of this case. I must, therefore, find that the respondent acted correctly under the immigration legislation and dismiss this appeal." The adjudicator went on to consider whether he might recommend that the Secretary of State should exercise a discretion outside the rules in the applicant's favour, but on the merits of the matter he decided not to do so. There followed some correspondence involving solicitors and a Member of Parliament. On 30 July 1992 the Immigration Appeal Tribunal refused leave to appeal. After the decision there was a letter from the Home Office, dated 18 August 1992, to the Member of Parliament, which I should read in part: "As you know, Mr Okello appealed against this decision to the independent appellate authorities established by Parliament, and the appeal was dismissed by the adjudicator. I enclose for your information a copy of the adjudicator's determination. You will see that the adjudicator considered the circumstances described in Dr Ayeni's letter sympathetically but did not consider it appropriate to recommend that discretion be exercised outside the Immigration Rules. The case has nevertheless been reviewed in the light of your representations but I am afraid we would not feel justified in reversing the decision which has been reached and so recently upheld on appeal." There was clearly a further letter from the Member of Parliament because the Department wrote again on 5 October 1992. As I have indicated, this is the letter which constitutes the decision under challenge. It reads: "Thank you for your letter of 26 August and enclosures concerning Mr Paul Okello who has been refused leave to remain in the United Kingdom as a student . . . As you probably know Mr Okello applied for leave to appeal to the Tribunal after his appeal to the appellate authorities had been dismissed by the adjudicator. This application was refused on 30 July and I enclose a copy of the determination which sets out the reasons for this. The case has been reviewed again in the light of your representations and the letter from Mr Okello's Deputy Headmaster but I am afraid I do not feel justified in reversing the decision which has been upheld at appeal." Mr Hussain on behalf of this applicant has first submitted to me that the Secretary of State has misunderstood the sense of rule 111. There is no judicial review in this case of the decisions of the appellate authorities, but the way, no doubt, it is intended to be put is that the adjudicator clearly regarded rule 111 as mandatory -- indeed he said so -- and the reasoning of the Secretary of State in refusing to grant a variation to the applicant in his later correspondence when asked to look at the matter again in part at least proceeds on the basis that the appellate authorities had arrived at a correct decision. So that implicit in the letter of 5 October is the view that rule 111 is indeed mandatory. In supporting this submission Mr Hussain has invited me, in reliance on the decision of their Lordships' House in Pepper v Hart [1993] AC 593 to take account of some remarks in the House of Commons by the then Home Secretary upon the occasion when, in June 1989, he laid before Parliament the statement of changes in the immigration rules which included rule 111. In Pepper v Hart, as is well-known, their Lordships held that parliamentary material might be examined by a court in order to assist the construction of a statute in certain limited circumstances summarised in the headnote at 594 C-D thus: "Where -- (a) legislation was ambiguous or obscure or led to absurdity, (b) the material relied upon consisted of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as was necessary to understand such statements and their effect and (c) the statements relied upon were clear . . ." It is true that in the course of his speech Lord Browne-Wilkinson adverted to the fact that it seemed already established that Parliamentary material might be resorted to in the construction of statutory instruments. He referred, at page 631B to the House's decision in Pickstone v Freemans plc [1989] AC 66 in which Lord Keith, after pointing out that the draft regulations were not subject to the Parliamentary process of amendment in Committee, said that it was: "'entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft was presented by the responsible Minister and which formed the basis of its acceptance.'" (112B-C) It is not necessary to engage in such fine questions as whether the conditions under which the court may examine Parliamentary material to construe a main statute differ from those in which it may conduct a like exercise for the construction of a statutory instrument, since, in my judgment, there is in the instant case no question of any ambiguity in the terms of rule 111. Out of deference to Mr Husain's argument I indicate that what the minister said in the passage on which Mr Husain relies was in these terms: "I have today laid before Parliament a statement of changes in the immigration rules in consolidated form. The main changes of content are the introduction of a visa requirement for nationals of Turkey and Haiti;" -- and then here is the relevant part -- "curtailing the ability of visa nationals to switch after arrival from visitor to student status . . ." Mr Husain's point is that the word "curtailing" indicates an intention in the rule-maker to impose a less rigid requirement than a mandatory one in fixing the conditions in which there may be, as the Home Secretary described it, a switch from visitor to student status. I do not accept that as a matter of language, but in any case in my judgment, the rule itself is unambiguous. The words "a person should be refused an extension of stay for the purpose of studying" cannot sensibly be understood as meaning "should normally be refused such an extension of stay". It is well-known that where such a provision is intended in the immigration rules it is expressed in some such manner. Moreover, the rule sets specific and express conditions under which the refusal is to be given, namely it is to be given in the case of a person who is a foreign national or Commonwealth citizen specified in the appendix who came without a student's entry clearance. Again the rule is made subject to paragraph 15, so that the scope of its application is made entirely clear on its face. This conclusion is supported by a decision of the Divisional Court in R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department decided on 1 July 1992. I should say at once that the question whether the word "should" in rule 111 was not the subject of adversarial argument in that case, but the proposition that it was mandatory was a necessary premise for the approach of the court. Watkins LJ, as he then was, said this: "It is common ground, contrary to the contention made in the appeals" -- those were appeals to the appellate authorities -- "by the applicant that the word 'should' in paragraph 111 is mandatory. If, therefore, the applicant were to succeed in his application it could only be because the Home Secretary has a discretion to act outside the rule in paragraph 111 in accordance with statutory powers enabling him so to act. Mr Pannick QC for the Home Secretary concedes that the Home Secretary has a discretion to act without the rule. But he said the Home Secretary may do so only in very unusual or exceptional circumstances and such circumstances simply do not exist in the present case." The court went on to adjudicate upon the merits, in effect, of the claim that the applicant there should have been the beneficiary of a discretion exercised outside the rule. It follows that I reject Mr Husain's first submission. Rule 111 is mandatory. The appellate authorities reached the correct conclusion upon that question and, insofar as the Secretary of State adopted that conclusion by his impugned decision of October 1992, he too made no error. Mr Husain's second submission was a more far-reaching one. He submitted that the Secretary of State was obliged to exercise a discretion in the case of this application because section 4 of the Immigration Act required him to do so. This requirement runs, so submits Mr Husain, quite irrespective of the terms of any immigration rule. Section 4(1) is, so far as relevant, in these terms: "The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and the power to give leave to remain in the United Kingdom or to vary any leave under section 3(3)(a), whether as regards duration or conditions, shall be exercised by the Secretary of State . . ." I must read section 3(3)(a) to make sense of the point. That 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 . . ." Mr Husain's point is that, taking 3(3)(a) and 4(1) together, the statute contemplates that the Secretary of State, in exercising the functions conferred on him, is to approach each case as a matter calling for his individual discretion. He would no doubt rely on such well-known authorities as British Oxygen Co Ltd v Minister of Technology [1971] AC 610, showing that whatever may be a public decision-maker's entitlement to maintain a policy, if a discretionary power is conferred on him he must in every case in the end be prepared to listen to a claim that he should depart from the policy. In elaborating this submission, Mr Husain made reference to rules 95 and 97, which latter concerns the statutory right of appeal to the appellate authorities, but, without disrespect to him, I do not find it necessary to set out the content of either of these rules. In my judgment, the submission confuses two different issues. The first issue is what may be the lawful content of an immigration rule. The second issue is whether the Secretary of State, irrespective of the contents of any given immigration rule, possesses a discretion to act outside the rule if he thinks it right to do so. As to this second issue, it is well-settled and well-established that indeed he possesses such a discretion. That has been recognised in many cases, including the Divisional Court decision to which I have made brief reference. It is also recognised in a decision of the Court of Appeal which has been helpfully cited to me, Pearson v Immigration Appeal Tribunal [1978] Imm AR 212, a case which dealt with the terms of paragraph 5 of HC 80, an earlier immigration rule dealing with applications to vary a leave to enter so as to take up employment. There is thus no doubt that the Secretary of State possesses such a discretion. But it does not follow from that that he is required, in framing immigration rules under section 3(2) of the Act of 1971, to provide in every rule which regulates claims to enter or remain in this country that a conclusion is to be reached in every case on a discretionary basis. I should read section 3(2) in part: "The Secretary of State shall from time to time and as soon as may be lay before Parliament statements of the rules or of any changes in the rules laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter . . ." It is well-known that from time to time immigration rules have been framed not only so as to provide mandatory grounds for refusal of leave to enter or remain in certain cases, but also in other cases to provide a mandatory entitlement to enter or remain in the country. Mr Husain's submission would have the effect that the latter form of rule was as unlawful as the former. The true position is that the framework of the rules is to operate as conclusive guidance for immigration officers and the appellate authorities in relation to the decisions that they must make in every case, and that is so whether the rule is a discretionary one or one involving a mandatory requirement. But there is no offence to such doctrine as British Oxygen, by reason of the very fact that the Secretary of State always has a discretion to act outside the rules if he thinks it right to do so. The circumstances in which he might successfully be reviewed for a decision made in approaching that discretion may be narrow, but in the end such a decision would be an administrative decision subject to the supervision of the court. In the course of his argument, in answer to a question from myself, Mr Husain specifically disavowed the suggestion that in this case he was seeking any judicial review of the Secretary of State's decision whether to exercise a discretion in the applicant's favour outside the rules. The fact is that when the Secretary of State came to his conclusion on 5 October 1992 in the letter which I have read, he decided not to exercise a discretion outside the rules. As Mr Husain does not seek to suggest that a discretion outside the rules should have been exercised in a way in which it was not exercised, this application for judicial review is doomed to failure unless Mr Husain's first point as to the construction of rule 111 is correct, and I have already rejected it. In those circumstances the application will be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Kibedi & Co, London SE13; Treasury Solicitor

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