Adetutu Iyabode Oloniluyi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1988 |
| Date | 18 November 1988 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Lord Donaldson MR Dillon, Staughton LJJ
A Riza for the appellant
P Havers for the respondent
Case referred to in the judgments:
R v Secretary of State for the Home Department ex parte Oloniluyi (QBD) [1988] Imm AR 376.
Legitimate expectation visitor left United Kingdom while application for variation of leave as student under consideration verbal assurances she would have no difficulty in returning to United Kingdom s. 3(3)(b) stamp in passport and endorsement that no visa required for re-entry refusal of leave on return to United Kingdom whether assurances gave rise to legitimate expectation whether refusal of admission and loss of potential appeal rights while in United Kingdom were to her detriment. Immigration Act 1971 s. (3)(3)(b), 3(4); HC 169 paras. 10, 13.
Limited leave passenger returning from temporary absence abroad where it is appropriate to treat such a passenger as a new arrival limitations on the ambit of the immigration officer's discretion. HC 169 para. 58.
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 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.
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. Moreover 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 appropriateif 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 wouldjustify the revocation of the earlier leave.
The Master of the Rolls: If an intending visitor to this country is refused leave to enter upon his arrival, he has a right of appeal to an adjudicator under section 13 of the Immigration Act 1971. Butand this is a qualification of vital importance both to the visitor and to the successful operation of immigration controlsthe right only arises after the intending visitor has left the United Kingdom. By contrast, if an intending visitor is given leave to enter and enters this country, thereby becoming an actual visitor, and he is aggrieved at the shortness of the visit for which he has been given leave or at any conditions which have been imposed, he may appeal under section 14 of the Act and is not required to leave the country before doing so. Furthermore, any time limit upon his leave to remain here is automatically extended pending the determination of the appeal (see the Immigration (Variation of Leave) Order, 1976 SI 1572 of 1976).
Whilst this dichotomy between the rights of appeal of an intending visitor and the much more favourable rights of appeal of an actual visitor is clear, it is qualified by a provision which is a trap for the unwary or uninformed. It arises in this way. If a visitor whose leave to remain has some time still to run, leaves the country, if only on a day trip to Calais, that leave becomes void when he embarks and upon his return he is treated as once again being an intending visitor, with only the more limited right of appeal of such a visitor.
Miss Oluniluyi, a Nigerian citizen, fell into this trap. She had leave to remain in this country and had applied to have that leave extended. If that application had been refused, she could have appealed and remained pending the outcome of the appeal. In the event she went home to Nigeria to spend Christmas with her family and on her return was refused leave to enter. From that refusal she can only appeal if she first leaves the United Kingdom. Miss Oloniluyi was sufficiently aggrieved to seek judicial review of the refusal of leave and of the Secretary of State's confirmation of it and consequential decision to arrange for her to return to Nigeria. That application was heard by Macpherson J on 8 March 1988 who refused the applicant any relief. Miss Oloniluyi now appeals.
All such cases depend upon their own facts and it is therefore right that I should set out the facts of this particular case in more detail.
The applicant was born and educated in Nigeria where she trained as a nurse. On 20 June 1985 she came to this country and was given leave to enter and to remain as a visitor for a period of six months. It is not entirely clear what reason she gave for wanting to visit this country, but I will assume that, as the respondents allege, she did not say that she wished to enrol as a student. However, before this leave expired she did undoubtedly decide to enrol in a two-year business studies course with the London School of International Business Studies, enrolled for this course and applied to have her leave extended to enable her to complete the course.
It has to be stressed that, provided that the original purpose of her visit was not to enrol as a student, all this was quite lawful. A visitor is not prohibited from enrolling as a student during the currency of his leave. The only problem which faces him, apart from paying for the course, is that he may not be able to complete it before his visitor's leave expired. Even this problem may be overcome, wholly or in part, if before that leave expires he adopts the course taken by the applicant and applies for an extension of the leave, since that application itself operates to extend the leave under the Immigration (Variation of Leave) Order 1976.
However, in one respect the applicant was undoubtedly in breach of the terms of her leave and committed an immigration offence. In December 1985 she took employment as a domestic assistant in a hospital for two hours per day for a period of six weeks. She says that this was to meet people rather than to earn money. This came to light when she was interviewed at Carter Street Police Station on 10 February 1986...
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