R v Secretary of State for the Home Department, ex parte Mowla
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE RALPH GIBSON,THE MASTER OF THE ROLLS |
| Judgment Date | 06 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1206-4 |
| Docket Number | 90/1134 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 1990 |
[1990] EWCA Civ J1206-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR. JUSTICE ROCH)
Royal Courts of Justice
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR. JUSTICE HODGSON)
The Master of the Rolls
(Lord Donaldson)
Lord Justice Glidewell
Lord Justice Ralph Gibson
90/1134
MR. ANDREW COLLINS Q.C. and MR. JUSTIN FENWICK (instructed by the Treasury Solicitor) appeared for the Secretary of State in both appeals.
MR. ALPER RIZA (instructed by Messrs. McGrath & Co., Birmingham) appeared for Mr. Patel.
These are appeals against decisions of Roch J. and Hodgson J. on applications for judicial review of decisions of immigration officers to refuse the applicants, Mr. Mowla and Mr. Patel, leave to enter the United Kingdom. Although the two applications were in no way connected with each other, both appeals raise essentially the same points, and we have therefore heard them together. It is convenient to start by summarising the facts.
Mr. Mowla
He was born in, and is a citizen of, Bangladesh, and is now aged 34. He first arrived in the United Kingdom in February 1987. He was then in possession of a visa which he had obtained from the British High Commissioner in Malta. On arrival he was admitted to the United Kingdom as a visitor for a period of six months.
After Mr. Mowla had been in the United Kingdom for some two months he enrolled for an English course at a college in Tottenham Court Road, London. He was entitled to do this under the conditions of his permission to enter the country. He then applied for consent to remain in the United Kingdom and was granted leave to remain until 26th September 1988. In the summer of 1988 he made a further application to be allowed to remain in the United Kingdom, and on 26th September 1988 he was granted leave to remain until 30th November 1989.
This leave was notified to Mr. Mowla by a series of notices which were stamped in his passport. They read as follows:
1. "Leave to remain in the United Kingdom on condition that the holder does not engage in or change employment paid or unpaid without the consent of the Secretary of State for Employment, and does not engage in any business or profession without the consent of the Secretary of State for the Home Department is hereby given until 30th November 1989."
This was signed on behalf of the Home Secretary and dated 26th September 1988. I will call this "the leave stamp".
2. "This will apply, unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above."
I will call this the section 3(3)(b) stamp.
3. "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before 30 11 89".
I will call this "the visa exempt stamp".
In December 1988 Mr. Mowla returned to Bangladesh in order to marry, and on 3rd February 1989 he was married in that country. An application was made for entry clearance for his wife to come to the United Kingdom as a visitor, but this was refused. Mr. Mowla returned to the United Kingdom alone on 21st March 1989, and was granted leave to enter.
In July 1989 Mr. Mowla enrolled for the English course at the college he had been attending for the academic year 1989–90, which was due to begin in September 1989. Meanwhile, on 25th July 1989 he left the United Kingdom and went to Bangladesh. He returned to the United Kingdom on 7th September 1989.
In the meantime the immigration officers at Heathrow Airport had received information which led them to believe that Mr. Mowla, despite the conditions on the leave stamps, had taken paid employment. On his arrival he was therefore interviewed, and he admitted after some prevarication that he had indeed been in paid employment, starting in January or February 1988. He said that until May or June of 1989 he had been working for five days a week in most weeks as a waiter in a restaurant. He also said that the English course would be of little practical use to him when he returned to Bangladesh, where he intended to help to run his father's pharmacy business.
The immigration officer concluded that, as Mr. Mowla had been in paid employment, he was not satisfied that he was a genuine student or that he would leave the United Kingdom on the completion of his studies. He therefore refused him leave to enter the United Kingdom on 7th September 1989.
As I have said, this decision was challenged by way of an application for an order of certiorari quashing the decision. The application was heard by Roch J. who, on 13th December 1989, granted the application and quashed the decision. The Home Secretary now appeals against the learned judge's decision. Mr. Patel
He was born in, and is a citizen of, India, now aged 31. He first came to the United Kingdom on 10th June 1985, when he sought and was granted leave to enter and to stay for three months, on condition that he did not enter employment, paid or unpaid. He applied for, and was granted by the Home Secretary, two extensions of his leave, subject to the same conditions, the second of which expired on 31st March 1986.
Before that date was reached, Mr. Patel began a language course in English. He was granted a further extension of leave to remain as a student until 30th June 1987. This leave was notified to him by two stamps in his passport, namely, a leave stamp and a section 3(3)(b) stamp. The leave to remain as a student was extended by the Home Secretary on two further occasions, the second leave expiring on 30th September 1989. Each of these renewed leaves was communicated by three stamps in his passport, namely, a leave stamp, a section 3(3)(b) stamp and a visa exempt stamp.
From April 1987 onwards, Mr. Patel was engaged, or was allegedly engaged, in a course on computer studies at an institution called "Capital College". During the second year of these studies, Mr. Patel left the United Kingdom on 25th January 1989 in order to visit his father in India. He returned to the United Kingdom on 12th March 1989.
The Home Office already knew that Capital College was a very modest institution occupying two rooms, and with only the most rudimentary of student registers. Nevertheless, they had accepted previously that Mr. Patel was engaged as a bona fide student at this college. However, early in 1989 the Home Office received information that Capital College was not a genuine academic institution, but merely supplied false references and records of attendance for persons who were alleged to be students, in order to enable them to remain in the United Kingdom. On Mr. Patel's return to the United Kingdom on 20th March 1989 he was interviewed by immigration officers. In the light of his answers, they were not satisfied that he was following, or intending to continue to follow, a full-time course of organised study, nor that he was a genuine student who would leave the United Kingdom on the completion of his studies. Accordingly, on that day, he was refused leave to enter on those grounds.
Mr. Patel sought to challenge this decision by an application for judicial review to quash the decision. The application was heard by Hodgson J. who, on 5th June 1990, dismissed it. Mr. Patel now appeals against this decision.
The points at issue
The main points at issue in both these appeals are:
(i) Do the section 3(3)(b) stamp and the visa exempt stamp, singly or together, amount to a representation that the passport holder will be granted leave to re-enter the United Kingdom on his return from abroad?
(ii) If so, the extent and terms of such a representation.
(iii) The effect of such a representation on a decision by an Immigration Office.
The Legislation
The relevant statutory provisions are contained in the Immigration Act 1971, as amended by the British Nationality Act 1981 and the Immigration Act 1988.
Mr. Mowla and Mr. Patel are not British citizens. By section 3(1) of the 1971 Act they therefore may not enter the United Kingdom except with leave given in accordance with the Act. Such leave may be for either a limited or an indefinite period, and may be given subject to conditions restricting, amongst other matters, employment.
Section 3(3) provides:
"In the case of a limited leave to enter or remain in the United Kingdom,
(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying, or revoking conditions…; and
(b) the limitation on and any conditions attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave."
I make two comments about these provisions. Firstly, once leave to enter or remain in the United Kingdom is given, the leave itself cannot be revoked. However, the duration of leave to stay or remain in the United Kingdom may be varied by reducing it, which will have much the same effect as revocation. Secondly, paragraph (b) has the effect that, if a person has been given leave to remain in the United Kingdom for, say, 12 months, and during that time he leaves the United Kingdom for a short period, if he is given leave to re-enter within the 12 months the original...
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