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Alexander v. Immigration Appeal Tribunal

Alexander v Immigration Appeal Tribunal

HOUSE OF LORDS

[1982] 2 All ER 766, [1982] 1 WLR 1076, [1981] Imm AR 50

Hearing Date: 17 JUNE, 8 JULY 1982

8 JULY 1982

Index Terms:

Immigration - Leave to enter - Non-patrial - Student - Requirements for entry - Applicant producing evidence of genuine intention to study in United Kingdom - Applicant unable to satisfy immigration officer of intention to leave United Kingdom on completion of course - Immigration officer refusing leave to enter - Whether necessity to satisfy immigration officer of intention to leave country on completion of course a 'requirement' for entry - Whether applicant not satisfying 'requirements' for entry - Whether immigration officer having discretion to admit student for short period despite failure to show intention to leave country on completion of course - Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79), paras 19, 21.

Held:

The applicant obtained an entry certificate in Sri Lanka to enter the United Kingdom as a student but on her arrival in England the certificate was found to be invalid. The applicant therefore applied to the immigration officer for leave to enter the country as a student, in order to take a three-year course in marketing. Although she satisfied the immigration officer that she had a genuine and realistic intention of studying in the United Kingdom he refused her leave to enter, on the ground that she had not satisfied the requirements of either para 18 a of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens, namely that she was able to meet the full cost of the course and her own maintenance during the course, or para 19 b of those rules, namely that she was able to satisfy the immigration officer that she intended to leave the country on completion of the course. The applicant appealed to an adjudicator, who allowed the appeal and directed that she should be admitted as a student for a short period, within the limit of her means, under para 21 c of the immigration rules. The immigration officer appealed to the Immigration Appeal Tribunal, which held that the officer had properly refused the applicant leave to enter. The applicant applied to the Divisional Court for an order of certiorari to quash the tribunal's determination on the ground that the tribunal had erred in law in failing to take into consideration the discretion under para 21 to admit for a short period a student who satisfied the immigration officer that he or she had a genuine and realistic intention of studying but who was unable to satisfy the 'requirements' for the issue of an entry certificate, including the requirement in para 19 of satisfying the immigration officer that he or she intended to leave at the end of his of her course. The Divisional Court held that, even though a student could not satisfy the immigration officer that he or she intended to leave the country on completion of a course of study, the immigration officer nevertheless had a general discretion under para 21 to admit the student for a short period within the limit of his or her means. The appeal tribunal appealed to the Court of Appeal, which reversed the decision, holding that an immigration officer had no discretion under para 21 to override the prohibition on entry of a person who did not fulfil the conditions contained in para 19. The applicant appealed to the House of Lords.

a Paragraph 18 is set out at p 769 c, post.

b Paragraph 19 is set out at p 769 d to f, post.

c Paragraph 21 is set out at p 769 g h, post.

Held - The immigration rules were to be construed sensibly according to the natural meaning of the language which was employed and not with the strictness applicable to a statute or statutory instrument. Accordingly, the 'requirements of the preceding paragraphs' referred to in para 21 of the rules were not restricted to the requirements of para 18 alone but covered all the requirements in paras 18 and 19. The discretion of an immigration officer to admit a person under para 21 therefore extended to a person who did not fulfil the requirements of para 19. It followed that the appeal would be allowed (see p 767 j, p 770 d to h and p 771 a to e, post).

Decision of the Court of Appeal sub nom R v Immigration Appeal Tribunal, ex p Alexander [1982] 1 All ER 763 reversed.

Notes:

For the entry of non-patrial students, see 4 Halsbury's Laws (4th edn) para 984.

Introduction:

Appeal. On 25 September 1978 the appellant, Miss Kamalawathie Alexander, was refused leave by the immigration officer to enter the United Kingdom as a student for a short period within the limit of her means, under para 21 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79). She appealed to the adjudicator who on 9 October 1978 allowed her appeal. The Secretary of State for the Home Department appealed against the decision to the respondent the Immigration Appeal Tribunal, and on 16 November 1978 the appeal was allowed. The appellant applied, with leave of the Divisional Court granted on 12 July 1979, for judicial review by way of an order of certiorari to quash the determination of the respondent. On 7 December 1980 the Divisional Court (Donaldson LJ and Forbes J) quashed the respondent's determination and remitted the matter to the respondent for reconsideration. The respondent appealed and on 28 October 1981 the Court of Appeal (Lord Denning MR and Watkins LJ, Oliver LJ dissenting) ([1982] 1 All ER 763, [1982] 1 WLR 430) allowed the appeal. The appellant appealed to the House of Lords with leave of the Appeal Committee granted on 21 January 1982. The facts are set out in the opinion of Lord Roskill.

Counsel:

Michael Beloff QC and David Pannick for the appellant. Simon D Brown and Stephen Aitchison for the respondent.

Judgment-READ:

Their Lordships took time for consideration. 8 July. The following opinions were delivered.

PANEL: LORD DIPLOCK, LORD KEITH OF KINKEL, LORD ROSKILL, LORD BRANDON OF OAKBROOK AND LORD BRIGHTMAN

Judgment One:

LORD DIPLOCK. My Lords, for the reasons given in the speech prepared by my noble and learned friend Lord Roskill, with which I agree, I too would allow the appeal.

Judgment Two:

LORD KEITH OF KINKEL. My Lords, I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend Lord Roskill. I agree with it, and for the reasons he gives I too would allow the appeal.

Judgment Three:

LORD ROSKILL. My Lords, nearly four years ago, on 19 September 1978, the appellant arrived at Heathrow Airport. She was, and is, a citizen of Sri Lanka, and thus subject to immigration control under the Immigration Act 1971 and the then current immigration rules made pursuant to s 3(2) of the 1971 Act (Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (HC Paper (1972-73) no 79). At the time of her arrival the appellant had an entry clearance. The immigration officer took the view that this entry clearance had been obtained by a material deception. This conclusion has at no time been challenged in any of the subsequent proceedings. This entry clearance was, therefore, of no avail to her at the time of her arrival, and is of no further relevance to this appeal. The appellant then applied for leave to enter as a student to begin a three-years' course in marketing studies. The immigration officer at Heathrow was satisfied that the appellant had at the material time a genuine and realistic intention of studying in this country, and that fact has never been in issue. But he was not satisfied either that she had sufficient means available to her to meet the whole cost of her intended course or to maintain herself, or, which is presently the important conclusion, that she intended to leave the United Kingdom after completing her studies. The immigration officer, being of that opinion, took the view that in those circumstances he possessed no discretion to admit her, and accordingly he did not purport to exercise any discretion. He, therefore, on 21 September 1978, refused the appellant leave to enter the United Kingdom as a student.

My Lords, the question of the appellant's means is no longer relevant. The sole issue for determination by your Lordships' House is whether, notwithstanding the immigration officer's conclusion that he was not satisfied that she intended to leave the the rules accorded to him a discretion under para 21 to admit her for 'a short period'.

My Lords, the immigration officer's decision has led to a remarkable succession of legal proceedings during the currency of which the appellant has, your Lordships were told by counsel, remained in this country albeit without pursuing her intended studies. That remarkable succession of legal proceedings has resulted in a remarkable difference of opinion on what was agreed by counsel during the hearing of this appeal to be a very short, and your Lordships may think, simple point of construction of the last sentence of para 21 of the rules which must, of course, be interpreted in the context of the antecedent paras, 18, 19 and 20, and in particular, paras 18 and 19.

The succession of proceedings began with an appeal by the appellant to an adjudicator. On 9 October 1978 the adjudicator allowed her appeal. It is not necessary to refer to his reasons. They occupy some four closely printed pages. The immigration officer then appealed to the Immigration Appeal Tribunal. That tribunal, on 16 November 1978, reversed the decision of the adjudicator, and allowed the immigration officer's appeal. Their reasons for so doing also occupy some four closely printed pages. The appellant then obtained leave, substantially out of time, to move the Divisional Court for an order of judicial review to quash the determination of the Immigration Appeal Tribunal. On 7 November 1980, some two years after the date of that determination, the Divisional Court (Donaldson LJ and Forbes J) quashed that determination and sent the matter back to the Immigration Appeal Tribunal for reconsideration in the light of their decision that, on the facts which I have outlined, the immigration officer on the true construction of para 21 possessed the discretion to decide whether or not to admit the appellant 'for a short period'. They directed that the Immigration Appeal Tribunal must consider, as they had not previously done, whether or not that discretion should be exercised in the appellant's favour. An appeal to the Court of Appeal was then brought against that decision. On 28 October 1981 the Court of Appeal (Lord Denning MR, Oliver and Watkins LJJ) ([1982] 1 All ER 763, [1982] 1 WLR 430) by a majority allowed that appeal, holding that there was no such discretion vested in the immigration officer. Oliver LJ delivered a powerful and closely reasoned dissenting judgment, agreeing with the conclusion of the Divisional Court. On 21 January 1982 your Lordships' House gave the appellant leave to appeal against that decision of the Court of Appeal.

My Lords, since the date on which the appellant was originally refused leave to enter, the rules have been changed with effect from 1 March 1980 (Statement of Changes in Immigration Rules (HC Paper (1979-80) no 394). What were paras 18 to 21 inclusive of the rules have become paras 21-25 inclusive of the new rules. In para 25 of the new rules, formerly para 21 of the rules, there is a slight change in phraseology. Your Lordships are not concerned with the new rules but it is right to record that counsel for the respondent did not suggest that whatever was the correct answer to the true construction of para 21 of the rules, a different result could be arrived at on the true construction of the new para 25.

My Lords, for ease of reference I set out paras 18, 19, 20 and 21 of the rules in their entirety:

'Students

18. A passenger seeking entry to study in the United Kingdom should be admitted (subject to paragraph 12) if he presents a current entry clearance granted for that purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the officer to whom he applies that he has been accepted for a course of study at a university, a college of education or further education, an independent school or any bona fide private educational institution; that the course will occupy the whole or a substantial part of his time; and that he can meet the cost of the course and of his own maintenance and that of any dependants during the course.

19. An applicant is to be refused an entry clearance as a student if the officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it. In assessing the case the officer should consider such points as whether the applicant's qualifications are adequate for the course he proposes to follow, and whether there is any evidence of sponsorship by his home government or any other official body. As a general rule an entry clearance is not to be granted unless the applicant proposes to spend not less than 15 hours a week in organised day-time study of a single subject or of related subjects, and is not to be granted for the taking of a correspondence course.

20. An applicant accepted for training as a nurse or midwife at a hospital should be granted an entry clearance as a student unless there is evidence that he or she has obtained acceptance by misrepresentation or does not intend to follow the course. Doctors and dentists are admissible for full-time post-graduate study even though they also intend during their stay to seek employment in training posts related to their studies.

21. A passenger who holds a current entry clearance, or who can satisfy the Immigration Officer that he fulfils all the requirements of the preceding paragraphs, may be admitted for a period of up to 12 months, depending on the length of the course of study and on his means, with a condition restricting his freedom to take employment; he should be advised that he may apply to the Home Office in due course for an extension of stay. A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the United Kingdom but cannot satisfy the requirements of the preceding paragraphs may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case.' My Lords, reading paras 18 and 19 together it seems clear that there are five requirements which a student seeking entry clearance must satisfy. The 'officer' (let it be noted that he is different from the 'Immigration Officer' in para 21) will grant entry clearance if the applicant produces evidence which satisfies him that (1) the applicant has been accepted for a course of study at a university etc, (2) the course will occupy the whole or substantial part of the applicant's time, (3) the applicant can meet the cost of the course and of his own maintenance and of the maintenance of any dependants during the course, (4) the applicant is able and intends to follow a full-time course of study, and (5) the applicant intends to leave the country on completion of that course. Under para 21, if the applicant holds a current entry clearance, which means that he has already satisfied the relevant officer of the five requirements, or if the can satisfy 'the Immigration Officer' that he fulfils all the requirements of the 'perceding paragraphs', he may be admitted for a period of up to twelve months. It seems to me clear that the phrase 'the requirements of the preceding paragraphs' are those five requirements specified in paras 18 and 19 which I have just enumerated. If, however, he can only satisfy the immigration officer that --

'he has genuine and realistic intentions of studying in the United Kingdom [that plainly refers to requirement (4) above] but cannot satisfy the requirements of the preceding paragraphs [he] may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case.'

Plainly the word 'may' in that context is permissive. But does the last phrase permit the exercise of the discretion in favour of the applicant, if he fails to satisfy the immigration officer that he intends to leave the country at the end of the course in question?

My Lords, Lord Denning MR thought that the crucial words in para 19 were imperative. They required the immigration officer to refuse entry if requirement (5) was not satisfied. Those words, he said, 'took priority' over the last words in para 21. Watkins LJ, in agreeing with Lord Denning MR, drew a distinction between what the learned Lord Justice called 'the requirements' of para 18 and 'the prohibitions' of para 19. But though the two paragraphs are differently worded, para 18 does not use the word 'requirements' and para 19 does not use the word 'prohibitions'. The word 'requirements' is used in para 21 in two places, and with reference to the 'preceding paragraphs' which as a matter of construction must, I think, include both paras 18 and 19. With all respect to the learned Lord Justice I see no justification for distinguishing between the provision of these two paragraphs as he suggests.

My Lords, the construction which found favour with both Lord Denning MR and Watkins LJ demands the restriction of the phrase 'all the requirements of the preceding paragraphs' in para 21, to the requirements of para 18 only. With respect I am unable so to read the relevant part of para 21. These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed. The rules gives guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation.

My Lords, I have found the reasoning of Donaldson LJ in the Divisional Court and of Oliver LJ in the Court of Appeal convincing, for like them I can see no justification for cutting down what I would regard as the natural meaning of the last sentence of para 21. A student who has not got a prior entry clearance can properly, in an appropriate case, if the immigration officer thinks fit, be admitted for a short period to get his affairs in order and then satisfy those of the requirements which in the opinion of the immigration officer he has not previously satisfied on arrival, leaving it to him in due course, when he is in a position to do so, to apply to the Home Office. Counsel for the respondent argued that because para 21 required that the student must satisfy the immigration officer of his genuine and realistic intention of studying in the United Kingdom before any question of the exercise of any discretion could arise, there should as it were be treated as 'built in' to that mandatory requirement a further mandatory requirement that the student should also be able to satisfy the immigration officer of his intention to leave the United Kingdom on completion of the course. My Lords, I can only say, with respect, that I cannot extract that meaning from the language of para 21. He also prayed in aid what he called the complementary requirement regarding students in the rules for control after their entry (Statement of Immigration Rules for Control after Entry: Commonwealth Citizens, HC Paper (1972-73) no 80) and in particular para 12 of those rules. My Lords, I am afraid that I cannot find anything in para 12 of those rules which would assist in the construction of the rules with which your Lordships are concerned.

My Lords, the word 'requirements' must clearly be given the same meaning in both places where that word is used in para 21. Giving it the same meaning in both places it seems to me clear that the word refers to all the requirements of both paras 18 and 19 once the immigration officer is satisfied of the student's genuine and realistic intention of studying in the United Kingdom. My Lords, I might have contented myself with adopting as my own the judgment of Oliver LJ, but in deference to those who have expressed a contrary view I have endeavoured to state my own views in my own words. I would, therefore, allow this appeal.

I would restore the order of the Divisional Court dated 7 November 1980, quashing the determination of the Immigration Appeal Tribunal dated 16 November 1978, and remitting the matter to that tribunal for reconsideration in the light of the decision of Your Lordships' House that the discretion in question exists and must now be exercised by them. How the discretion is to be exercised is entirely a matter for them.

Judgment Four:

LORD BRANDON OF OAKBROOK. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Roskill. I agree with it and would allow the appeal accordingly.

Judgment Five:

LORD BRIGHTMAN. My Lords, I agree with the speech prepared by my noble and learned friend Lord Roskill, and would allow the appeal.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Seifert, Sedley & Co (for the appellant); Treasury Solicitor.

Topics: Arrival,