OA (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Peter Gibson,Lord Justice Hooper,Lord Justice Wall |
| Judgment Date | 14 February 2008 |
| Neutral Citation | [2008] EWCA Civ 82 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/1876/AITRF |
| Date | 14 February 2008 |
[2008] EWCA Civ 82
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall Lord Justice Hooper and
Sir Peter Gibson
Case No: C5/2007/1876/AITRF
IJ WOOLF
Mr Paul Richmond (instructed by Afro Asian Advisory Service) for the Appellant
Mr Steven Kovats (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14 January 2008
Lord Justice Hooper:
The appellant appeals against a decision of the Asylum and Immigration Tribunal (“AIT”) dismissing on re-consideration her human rights appeal against the refusal of the Secretary of State for the Home Department to grant her leave to remain as a student. There is one discrete ground of appeal. It is submitted that the decision of Immigration Judge Woolf allowing the appellant's appeal contained no error of law and thus there should have been no re-consideration.
The appellant, a citizen of Nigeria was born in July 1985. At the age of 16 she arrived in the United Kingdom in possession of a student visa of 1 year's duration for the purposes of studying an NVQ in accounting at Lambeth College in Brixton. She completed that course and applied for an extension to continue her studies so as to be able to complete the Association of Accounting Technicians (Intermediate) course also at Lambeth College. Her extension was granted until November 2003. This course was comparable with NVQ Level 3. She completed the course in June 2003.
In October 2003, a month before her leave expired, she sought advice from a Mr Baptiste whose details she had found via the Home Office website homepage which had a link to the OISC—an independent body set up with Government assistance to regulate those giving immigration advice. Mr Baptiste advised her that she could apply for indefinite leave to remain in the United Kingdom on the basis that she came to the United Kingdom as a minor aged 16 and because her siblings are British citizens and reside in the United Kingdom. Mr Baptiste advised her that she could apply as a dependant of her brother who sponsored her student application. Mr Baptiste demanded a fee of £3,500 for assisting with the application but agreed to reduce that fee to £2,500. He demanded and was paid a down payment of £1,250 before the application was made and he demanded the balance when the appellant's passport was returned to her.
In the first week of December 2003 Mr Baptiste telephoned her to say the passport had been returned and that she had been granted indefinite leave to remain. She subsequently paid the balance in February 2004 and was given the passport complete with the stamp granting indefinite leave to remain.
Meanwhile, having completed the intermediate AAT course she continued her studies to complete the Technician stage. To do that she had to enrol at the Andy Davidson College. She completed the Technician stage in June 2005.
In the meantime in May 2004 she had wanted to take a holiday abroad. She telephoned the Home Office in order to seek confirmation that she could travel to Italy on her passport. When she provided the reference to the Home Office letter which Mr Baptiste had given her, she was told it did not exist. When she gave her personal details she was told that the last application that had been received from her was that to extend her student visa until November 2003. She tried to contact Mr Baptiste without success, she contacted the Home Office and was advised to write to them giving all the details. Subsequently she wrote to the OISC, attended an interview and was advised to obtain a new representative.
In May 2004 she wrote to the Home Office enclosing copies of the documents that Mr Baptiste supplied and of the stamp in her passport. The representative followed this up with a letter dated 6 August 2004 enclosing her original passport and the letter that Mr Baptiste had given her. In that letter the appellant's representatives asked the Home Office to confirm that the Home Office stamp in the passport and the confirmation that she had indefinite leave to remain was genuine. No reply was received.
On July 21 2005 her representatives wrote a letter which included the application form for an extension of leave to remain.
Part of the letter reads as follows:
We sent our client's passport to yourselves on 6 August 2004 with a cover letter explaining that her previous representative had provided her with a letter stating that she had indefinite leave to remain in the United Kingdom and a corresponding stamp in her passport. We asked whether you could confirm that the stamp was genuine. Nearly a year has now passed and our client is anxious to receive confirmation that she is entitled to stay in the United Kingdom. Our client has therefore decided that if the indefinite leave to remain stamp in her passport is not genuine then she would like to apply for an extension of her leave to remain as a student. If the stamp in our client's passport is genuine please could you return all of our client's documents and refund the fee payment for this application.
We hope you will find the above information and the documents enclosed in support of the application satisfactory to consider the application favourably. However, if you require any further information we would be happy to assist you.
In the meantime, having completed her Technician stage in June 2005, the appellant registered at the Andy Davidson College on 15 August 2005 with the ACCA. She obtained exemptions from the first stage of the ACCA because of her previous studies and therefore started on the second stage of the ACCA course. The programme leads towards a degree in applied accounting awarded by Oxford Brookes University after completion of the second stage.
I turn to the form which her representative completed on the appellant's behalf in July 2005. She had merely signed it.
In the form the particulars of her past educational achievements were accurately given. The box asking the appellant whether she intended to continue her studies was filled in properly. However, unfortunately, the box which required her to name the course which she intended to follow was filled in with the name of the course she had just completed. An accompanying letter from the college dated March 21 2005 made it clear that she had was up to date with her fees and that her attendance had been 87%. The letter also stated that she is expected to progress on successful completion of the level 4 course to take the ACCA course. Mr Kovats points out that she failed to say that she had enrolled in the course. It was pointed out to him that enrolment would and did take place in August 2005, to which he replied that the appellant should have sent a further letter.
On 22 September 2006, 14 months after the making of the application for leave to remain as a student, the respondent rejected the application stating:-
“It is noted that your client wished to remain to start study at the Andy Davidson College. However, it is noted that your course was due for completion in June 2005 and we have no evidence that you have since re-enrolled. Therefore your application has ceased to have any basis.”
I suggested to Mr Kovats that it would have been obvious to the officer that the appellant intended to enrol in the ACCA course and, given the passage of time if for no other reason, the officer could have made enquiries of the appellant's representatives. Mr Kovats replied that it was the duty of the appellant to make sure that the necessary forms were properly completed and that officers did not have the time to ask the kind of question which I suggested the officer should have asked.
The author of the refusal letter then considered whether it would be a breach of the appellant's Convention rights to refuse her leave and decided that it was not. No reference had been made to Convention rights in the letter...
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