R (Senior-Milne) v The Parliamentary & Health Service Ombudsman
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Thomas,Lord Justice Mummery |
| Judgment Date | 28 May 2010 |
| Neutral Citation | [2010] EWCA Civ 585 |
| Docket Number | Case No: C5/2009/1549 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 May 2010 |
[2010] EWCA Civ 585
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
sitting in the Administrative Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Hhj Collins
Before: Lord Justice Mummery
Lord Justice Thomas
and
Lord Justice Pitchford
Case No: C5/2009/1549
Cathryn McGahey (instructed by Treasury Solicitor) for the Appellant
Mr O Ngwuocha (accompanied by Mr Boahen) (instructed by Carl Martin—Solicitors) for the Respondent
Hearing date: 27th April 2010
Approved Judgment
Lord Justice Pitchford :
1. This appeal by the Secretary of State from an order of Collins J, brought with the permission of Laws LJ, raises the following issues: (a) the effect of entry clearance granted by a multiple entry visitor visa, (b) whether, and in what circumstances, on arrival in the United Kingdom the holder of such a visa may be refused leave to enter under paragraph 320(5) of the Immigration Rules (HC 395), and (c) the power of an immigration officer to cancel leave to enter granted by such a visa on the ground of change of circumstances since the visa was granted. The Secretary of State is represented by Miss Cathryn McGahey. The respondent, Daniel Owusu Boahen, appears in person assisted by Mr O Ngwuocha, a member of the firm of solicitors, Carl Martin, who acted for Mr Boahen below. Mr Ngwuocha addressed us on Mr Boahen's behalf. Events have, however, overtaken this appeal. As will appear, there is nothing of substance remaining for our decision which affects Mr Boahen's status in the United Kingdom. Mr Boahen's rights of appeal from the immigration officer's decisions are no longer of concern. However, we were informed by Miss McGahey that there is some confusion remaining upon the issues of practice and principle raised by the appeal and we have accepted the invitation to attempt some clarification.
Background
2. On or about 13 January 2008 Mr Boahen, a Ghanaian national, was issued with a multiple entry visa in Accra. The visa, stamped on Mr Boahen's passport, was valid from 26 January 2008 until 26 January 2010. It granted him entry clearance to the UK as a “Visitor” for a period up to 180 days in respect of any one stay, but excluded him from working or having recourse to public funds.
3. Mr Boahen visited the UK on or about 26 January 2008. He remained until 4 October 2008. He therefore overstayed by a period of some nine weeks. On 4 November 2008 he returned to the United Kingdom and was interviewed on arrival by an immigration officer. Following that interview, he was issued with a notice in form IS 82A in the following terms:
“On the 13 th January 2008 you were given leave to enter the UK as a “visitor” but you did not leave until 4 th October 2008 which is in breach of the 180 day limit endorsed on the visa. I am thus satisfied that you have failed to observe a condition attached to your stay in the UK, the visa conditions clearly state this. Furthermore you stated that you are in the UK to take care of your uncle's children, and you will [be] given money and accommodation for this. I therefore cancel your leave to enter under paragraph 2A of the Immigration Act 1971 and paragraph 321(i) of the Immigration Rules (HC395).
Further, you do not have a visa for any other purpose and you have failed to produce a passport or other identity document endorsed with a current UK visa issued for the purpose for which entry is sought, I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395).
I therefore refuse you leave to enter the United Kingdom.”
Removal directions were set and Mr Boahen was given notice of a limited out of country right of appeal.
4. In a facsimile letter sent on 10 November 2008 the firm of solicitors acting for Mr Boahen, Carl Martin, challenged the immigration officer's decision. On the following day, 11 November 2008, a chief immigration officer, Mrs M E Boden, replied saying:
“I have decided to issue an amended form IS 82A which more clearly outlines the reasons for the refusal of your client.”
The amended notice read as follows:
“On the 26 th January 2008 [sic] in Accra you were issued with a United Kingdom entry clearance endorsed “visit” but I am satisfied that there has been such a change of circumstances in your case since the leave was granted that it should be cancelled. The change of circumstances in your case is that you obtained leave to enter as a visitor for five weeks to visit your uncle, Kwadwo Duodo Owusu, but you have stated that you are now seeking entry for six weeks for the purpose of taking care of your uncle's children and that you will be given money and accommodation for doing so, which amounts to paid employment. Mr Owusu has stated that you will stay for two to three months.
I note that you last entered the United Kingdom as a visitor on the 13 th January 2008 but you did not leave until 4 th October 2008, thereby overstaying by almost three months the 180 day limit endorsed on your visa. You claim that was because you did not feel well and had to consult an NHS doctor, but you have produced no evidence of this. You also claimed that your uncle could not afford to change your return ticket.
I therefore cancel your leave under paragraph 2(A)(8) of the Immigration Act 1971 and paragraph 321A(1) of the Immigration Rules (HC395).
Furthermore, you are now seeking entry for the purpose of employment but you are a visa national and have failed to produce a passport or other identity document endorsed with a valid and current UK entry clearance issued for the purpose for which the entry is sought. I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395).
I therefore refuse you leave to enter the United Kingdom.”
The notice proceeded to inform Mr Boahen that directions for removal would be set and that he had a limited out of country right of appeal against the decision. It was common ground before us that it was the amended notice of 11 November 2008 delivered in substitution for the notice of 4 November 2008 which would determine the issues arising in the appeal.
Judgment of Collins J
5. The respondent, in proceedings for judicial review, challenged the decision to cancel his visa on the ground of change of circumstances. The essence of his claim was that the chief immigration officer did not have grounds for concluding that there had been a material change of circumstances since the visa was issued.
6. At paragraph 6 of his judgment of 6 June 2009 Collins J interpreted the effect of the notice of 4 November 2008 as a refusal of leave to enter the UK on that date. Entry was refused since Mr Boahen did not have entry clearance for the purpose of working in the United Kingdom. At paragraphs 7 and 8 of his judgment, the judge concluded that the notice of 4 November 2008 was not effective to act as a cancellation of Mr Boahen's visa. He said:
“7. The question of cancellation is covered by paragraph 321A of the Immigration Rules. Paragraph 321(i) on which the officer appeared to rely in cancelling leave does not apply in respect of cancellation and so that original notice was clearly, in that respect, invalid. Section [sic] 321A, however, states that:
“The following grounds for the cancellation for a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply:
(i) there has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled …
There are various other grounds, (conducive and so on) which are not material for the purpose of this case.
8. No doubt recognising that the cancellation of leave (that is the cancellation of the visa) was not permitted by the rule upon which the notice purported to rely, the immigration service, or the border agency, served a further notice on 11 th November….”
7. Paragraph 321(i) had no apparent connection with the reason put forward for cancellation of leave to enter. Paragraph 321(i) concerns refusal of leave to a person with valid entry clearance applying for leave to enter (on the ground of false representations or the submission of false documents to obtain entry clearance).
8. The judge proceeded to examine whether Mr Boahen's visa was lawfully cancelled on 11 November under paragraph 321A(1). At paragraph 9 and following the judge said:
“9. That [the notice of 11 November] at least referred to the correct rule, so far as cancellation of the visa was concerned. The question is whether there had been, within the meaning of paragraph 321A on the grounds relied on, such a change of the circumstances since leave was given, that it should be cancelled. The Home Office has issued guidance and in relation to change of circumstances this is said:
“Paragraph 321A(1) applies where there has been a change of circumstances in a person's case since the leave was such that it should be cancelled [sic]. Examples of such a change of circumstances would include the withdrawal of an offer of employment in the case of a person with an entry clearance for “Employment”, the withdrawal of sponsorship in a student case, or the permanent departure from the United Kingdom of the sponsor of a child coming for settlement”.
10. What is clear from that is the fact, if it be a fact, that a particular entry is sought for a purpose which is not covered by the existing visa does not of itself mean that cancellation of the visa is justified. It is only if the material persuades the immigration officer that there is now a permanent desire, or a permanent intention, not to use the visa for proper visits, but only for visits which are going to be in breach of the terms of visit because they are going to be for employment,...
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