R v Immigration officer ex parte Valentine Okwu Oyo
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 1995 |
| Date | 15 June 1995 |
| Court | Court of Appeal (Civil Division) |
Queen's Bench Division
Laws J
D Gordon for the applicant
M Fordham for the respondent
Cases referred to in the judgment:
R v Entry Clearance Officer, Bombay ex parte AminELRUNK [1983] 2 AC 818; [1983] 2 All ER 864.
Ghassemian and Mirza v Home Office (of 27 June 1980) [1989] Imm AR 42.
Adetutu Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135.
R v Secretary of State for the Home Department ex parte Bolanle Balogun [1989] Imm AR 199 (QBD): 603(CA).
Ahmed (unreported) (11267).
Leave to enter refusal applicant returned to United Kingdom during period of earlier leave that had lapsed on his leaving the United Kingdom whether previous leave stamp equivalent to entry clearance whether applicant had right of appeal whilst in United Kingdom against refusal to leave to enter whether applicant had legitimate expectation he would be re-admitted. Immigration Act 1971 ss. 3(3)(b), 3(4), 13(3), 33(1).
The applicant for leave to move for judicial review was a citizen of Nigeria. He had been given leave as a student. During the period covered by that leave he went to Nigeria. He returned to the United Kingdom before that period of leave would have ended if it had not lapsed on his departure from the United Kingdom. He was refused leave to enter the United Kingdom, the immigration officer not being satisfied he was a genuine student.
Relying on the Tribunal decision in Ahmed, counsel submitted that the stamp in the applicant's passport relating to his earlier grant of leave was the equivalent of an entry clearance under section 33(1) of the 1971 Act. It would follow that the applicant had a right of appeal while still in the United Kingdom, against the refusal to leave to enter. Counsel also submitted, following Oloniluyi, that the applicant had had a legitimate expectation that he would be re-admitted to the United Kingdom.
Held
1. Following Balogun, Ahmed had been wrongly decided.
2. In the events which had happened the applicant could have no legitimate expectation that he would be re-admitted to the United Kingdom.
3. The decision of the immigration officer was not Wednesbury unreasonable.
Laws J: This is an application for leave to move for judicial review in relation to the immigration officer's refusal to grant the applicant leave to enter the United Kingdom on 19 March 1995. Part of the relief sought is a claim for a declaration that the applicant is entitled to appeal to the immigration appellate authorities within the United Kingdom.
The applicant had been in this country for a considerable time before he left on 26 February 1995. Unhappily, his mother had died, and, according to his affidavit, he went to Nigeria to arrange her funeral. When he returned on 19 March 1995, he was refused leave to enter. He had enjoyed a previous leave, and that fact is of great importance in relation to the claim for a declaration. However, it is plain that, upon his leaving the United Kingdom on 26 February, that leave lapsed. That was by virtue of section 3(4) of the Immigration Act of 1971.
I turn to deal with the question whether it is arguable that the applicant was entitled to appeal the refusal of leave to enter while in the country. By virtue of section 13(3) of the Immigration Act 1971, a personand I quoteshall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom unless he was refused leave at the port of entry and at a time when he held a current entry clearance or was a person named in a current work permit.
The applicant says that his possession of the earlier leave to remain constituted, or arguably constituted, an entry clearance for the purposes of section 13(3). It is right to notice that, but for the effect of section 3(4)to which I have referredthat leave would have been effective until 9 May 1995, a date, of course, after the refusal of leave to enter on 19 March 1995.
In order to mount this argument, the applicant relies on the decision of the Immigration Appeal Tribunal...
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