Zhou v Secretary of State for the Home Department

This matter came before us as an appeal from the judgment of Goldring J. dated 17 May 2002 in which he refused to grant Mr Zhou permission to claim judicial review. The appeal was brought pursuant to permission granted by Sedley LJ on 16 August 2002 when, having considered the papers, he concluded that the grounds of appeal were arguable and that they raised an issue of some importance.

Mr Zhou is Chinese. He was permitted to enter this country in order to study English. The decision that he sought to challenge was one that he should be removed to China before the end of the period for which he had been granted permission to enter. That decision was originally given in a letter of 11 December 2001. It was confirmed in a letter of 18 December 2001. Two days before the hearing before Goldring J. the Secretary of State considered further evidence submitted by Mr Zhou, but declined to alter his decision. Mr Zhou sought to challenge the reasoning of the Secretary of State as set out in these three letters. His primary submission was that the decision to remove him was unlawful in that it was based on a misreading of the relevant Immigration Rules. Alternatively Mr Zhou contended that the exercise by the Secretary of State of his discretionary power to remove him was flawed because the Secretary of State refused to take in to account evidence that was relevant to the exercise of his discretion.

So far as Mr Zhou is concerned, his application appeared to us to have become academic. He had been permitted to remain in this country pending the determination of his application for judicial review. He had continued with his studies during this period and, in fact, has remained beyond October 2002, this being the end of the period for which he was granted permission to enter. In these circumstances we asked Mr Jay QC, when he rose to open the appeal for Mr Zhou, what object was served by pursuing it. His answer was that, if Mr Zhou succeeded in showing that the decision to remove him had been unlawful, this would strengthen his position in applying to be permitted to remain to conclude the course of studies which he is currently pursuing. There seemed to us some force in this.

Next we asked Mr Coppel, who represents the Secretary of State, why the Secretary of State was resisting judicial review. His answer was that the action taken in relation to Mr Zhou reflected a general practice which the Secretary of State was anxious to uphold. We indicated that we had formed a provisional view that the challenge that Mr Zhou sought to make raised an issue that merited review. That issue was essentially one of interpretation of the relevant regulations. In these circumstances we suggested that the most satisfactory course might be for us to grant permission to seek judicial review and then carry out that review ourselves. After taking instructions, Mr Coppel agreed to this course. Mr Jay said that it was one that he had anticipated. Accordingly we gave permission to seek judicial review and proceeded to hear argument on the merits.

This appeal requires consideration of: (1) primary legislation in the form of the Immigration Act 1971, as amended, (‘the 1971 Act’), the Immigration and Asylum Act 1999 (‘the 1999 Act’); (2) Immigration Rules made by the Secretary of State pursuant to section 3 of the 1971 Act (‘HC 395’) and (3) Immigration Directorates’ Instructions (‘IDI’), issued by the Immigration and Nationality Directorate.

The IDI are instructions to immigration officers and ICD caseworkers. They are, however, published and are available on a website. They represent the Secretary of State’s policy in relation to the matters that they cover. One of those matters is the terms upon which students are permitted to enter into part-time employment. The provision of the IDI setting out these terms is, in effect, a standing authorisation to students. The decision to remove Mr Zhou was based upon the premise that he was in employment which was, on true construction of this provision, unauthorised. Whether that premise was correct is the critical issue on which this appeal turns.

We turn to the relevant statutory and regulatory provisions.

Under further regulatory provisions, which it is not necessary to set out, Mr Zhou required entry clearance before leaving China for this country. This he obtained at the British Consulate in Guangzhou, leading to a visa being entered in his passport providing: ‘STUDENT SINGLE ENTRY’. He arrived in this country and was permitted to enter on 20 February 2000. He began studying English at the Harven School of English. His attendance there was exemplary. In September 2000 he transferred to Brooklands College.

In December 2000 Mr Zhou went, on vacation, to China to visit his family. He returned in January 2001. He was granted leave to enter for the period up to 31 October 2002. His passport was endorsed with Code 2. In September 2001 he enrolled for the next academic year at Brooklands. At the same time he entered into part-time employment in a branch of the Waitrose supermarket chain, working 12 hours a week at £5 per hour.

At the half-term break, on or about October 22^nd, Mr Zhou left Brooklands. On 26 November 2001 the student services manager of Brooklands, Mr Matthew Grant, wrote to Mr Zhou a letter which included the following passage:

Documentary evidence has been adduced which indicates that Brooklands did indeed consider Mr Zhou to be an unsatisfactory student. Mr Zhou seeks, however, to challenge the good faith of Brooklands. He has adduced evidence in support of the contention that the proportion of Chinese students at Brooklands was so high that it was not a satisfactory environment for learning English. He has also alleged that Brooklands uses the threat of reporting students to the immigration authorities in order to discourage them from transferring their allegiance to alternative academic establishments.

After leaving Brooklands in October 2001, Mr Zhou did not take immediate steps to enrol at an alternative establishment. He stated in his witness statement that he considered enrolling at Guildford College, but found that he could not enrol there until January 2002. Because of Brooklands’ threats to report him to the immigration authorities, he enrolled at Harven on 10 December 2001, but only for a period of two weeks, for only one of which he paid in advance. He could not afford to pay for a longer period. Later on that day he was arrested by the Immigration Service, who had been contacted by Brooklands.

The record of his interview by the Immigration Service shows that he challenged Brooklands’ contention that his attendance record was poor. He said that he left Brooklands at the October break because there were too many Chinese students there, so that there was little chance to practise his English. He accepted that he had, since September 2001, been working 12 hours a week at Waitrose, in order to supplement the financial assistance that he was receiving from his parents.

After this interview, the Immigration Officer directed Mr Zhou’s detention, pending arrangements for his removal. Notice of this decision served on Mr Zhou stated that it was on the ground that the Immigration Officer was satisfied that Mr Zhou was a person subject to administrative removal in accordance with section 10 of the 1999 Act as a person who had failed to observe a condition of leave to enter or remain. The Officer recorded details of Mr Zhou’s allegedly poor attendance at Brooklands and the Officer’s conclusion that, in working at Waitrose, he had been in breach of his landing conditions.

The Chinese Embassy intervened on Mr Zhou’s behalf and instructed solicitors, who wrote immediately to the Home Office seeking to have the arrangements that were being made for Mr Zhou’s removal set aside. A Chief Immigration Officer responded by letter of 11 December as follows:

Mr Zhou’s solicitors responded on the same day challenging the accuracy of the information provided by Brooklands and the assertion that Mr Zhou’s employment had not been authorised. They gave notice of Mr Zhou’s intention to seek judicial review. On 17 December they obtained an order from Keith J. staying Mr Zhou’s removal pending the conclusion of the proposed judicial review proceedings. Thus it is that Mr Zhou is still within the jurisdiction.

On 17 December Mr Zhou’s solicitors wrote asking for Mr Zhou to be released from detention and for the removal directions to be cancelled. The letter contained a detailed attack on Brooklands. It challenged the allegation that Mr Zhou was a poor attender and contended that he left Brooklands in October with the intention of enrolling at Guildford College. It alleged that Brooklands regularly reported students to the Home Office by way of penalising them if they decided to leave the college. It called on the Home Office to investigate the position. The letter also contended that Mr Zhou was entitled to undertake part-time work because he was at all material times a student within the Immigration Rules.

On 18 December 2001 the Immigration Service replied stating that they had no reason to believe that the information provided by Brooklands was incorrect and they saw no need to conduct a formal investigation into the college. On 20 December Mr Zhou applied for judicial review, specifying the date of the decision challenged as 18 December 2001. On 24 December he was released from detention.

On 15 January 2002 the Secretary of State’s Summary Grounds for resisting judicial review were filed. They asserted that the Secretary of State had independently verified Brooklands’ allegations. They contended that the action taken by the Secretary of State was justified because Mr Zhou was found to be working at Waitrose in breach of his landing condition.

On 12 April Sullivan J. refused Mr Zhou’s application for permission to apply for judicial review, observing that it was not arguable for the reasons explained in the Secretary of State’s Summary Grounds.

On 19 April Mr Zhou’s solicitors wrote to the Home Office enclosing statements from two other students at Brooklands. Each of these alleged that, when the student decided to move to another college, a member of Brooklands’ staff threatened to report that student to the Home Office unless Brooklands’ fees for the year were paid in full. The reply dated 13 May from the Home Office included the following passages:

On 16 May 2002, one day before the oral hearing of Mr Zhou’s renewed application before Goldring J., a Detailed Statement of Grounds was filed on behalf of Mr Zhou, which significantly altered the way in which he put his case. He conceded for the first time that Brooklands’ assertions as to his poor attendance were correct and that this had fallen below 15 hours per week. He also accepted that paragraph 57 of HC395 required Mr Zhou to attend at least 15 hours per week – a concession that is now withdrawn. Mr Zhou challenged, nonetheless, the Secretary of State’s assertion that in these circumstances Chapter 4 did not apply to Mr Zhou and that his employment at Waitrose was unauthorised and a breach of his entry condition. That challenge remains the first ground on which Mr Zhou seeks judicial review before us.

The second ground advanced, and still advanced, by Mr Zhou was that the Secretary of State’s decision to remove Mr Zhou involved the exercise of his discretion. Relevant to the exercise of that discretion was the manner in which Brooklands treated its students. The Secretary of State had acted irrationally in declining to have regard to these matters, as demonstrated by the 13 May letter. His decision was, accordingly, flawed.

Goldring J. held that neither of Mr Zhou’s grounds for challenge were valid. He accepted Mr Coppel’s submission that the Chapter 4 authorisation only applied to students and that a person ‘is not a student if he does not regularly attend the college at which he purports to be a student’. He further held that the Secretary of State was entitled to exercise his discretion without carrying out an enquiry into the aspects of students’ treatment at Brooklands of which Mr Zhou complained.

We turn to consider the two grounds relied upon by Mr Zhou.

Chapter 4 provides that ‘students over the age of 16 who are on Code 2 conditions’ may take part time work without the need to seek permission. The crucial issue is what is meant by ‘students’. We consider that the answer to this question falls to be determined by giving the words of Chapter 4 a sensible construction ‘according to the natural meaning of the words employed’. This was the approach of the House of Lords to the predecessor of HC 395 in Alexander v Immigration Appeal Tribunal [1982] 2 All ER 766 at 770 and it is one which we consider applies equally to Chapter 4. Those who are affected by Chapter 4 must be entitled to act upon it in accordance with its natural meaning.

Three possible meanings of ‘student’ are in play: (1) In correspondence the Secretary of State has contended that the criteria of a ‘student’ are to be found in paragraph 57 of HC 395. (2) In argument Mr Coppel was inclined to adopt a more flexible approach. He argued that whether an individual was a student was a question of fact and degree. A student was an individual who was pursuing a full-time course of study. (3) Mr Jay argued that, in the context of Chapter 4, a student was any individual who was lawfully in this country under leave to enter granted to him or her ‘as a student’.

Before turning to consider the natural meaning of the word ‘student’ in its context, we propose to consider the practical implications of the rival meanings, for these are very relevant in reaching a sensible construction of Chapter 4.

There are great practical difficulties in according to the word ‘student’ either of the first two meanings set out above. Paragraph 57 deals with the status of an individual at the time that he seeks permission to enter ‘as a student’. He must have been accepted for a course of study and he must be able and intend to follow it. Paragraph 57(ii) defines the course of study. It must be either a full-time degree course or one that is a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week. The approach of the Secretary of State, as it appears from the 13 May letter, is that an individual will cease to qualify as a student ‘unless he is giving regular attendance of a minimum of 15 hours per week and is able to meet all the costs of his course and accommodation, and maintain himself without taking employment or engaging in business except part time or vacation work undertaken with the consent of the Secretary of State’.

One can foresee many circumstances in which a person admitted as a student who embarks on a course which complies with the requirements of paragraph 57 may find that he is, perhaps temporarily, unable to maintain 15 hours a week attendance on the course. The college may, because of unforeseen circumstances find that it cannot provide 15 hours a week tuition in the chosen subject. The course may prove unsatisfactory and the student may wish to transfer to another teaching institution – as happened in this case. We do not understand it to be suggested that such events would place someone admitted as a student in breach of a condition attached to the leave to enter, so as to render that person liable to removal under section 10 of the 1999 Act. It seems to us patently unsatisfactory that such an event should render that person in breach of Code 2, and quite possibly guilty of an offence under section 24 of the 1971 Act, if he continues in temporary employment, particularly as the earnings from this might be necessary to supplement income needed for subsistence.

It was, perhaps, the unsatisfactory nature of the inflexible test of student status that had been advanced in correspondence by the Secretary of State that led Mr Coppel to advance a more flexible test. As we understood his argument, a person admitted as a student will cease to enjoy student status if his conduct is such that he cannot properly be said to be following a full-time course complying with paragraph 57. The greater flexibility of this test carries, however, its own problems. At what point does the student who is dilatory, or perhaps who chooses to study the written word at home rather than to attend lectures, cease to qualify as one who is following the course? Where breach of entry condition and possible criminal offending is concerned it is not satisfactory to have a test that is so uncertain.

In contrast to the first two meanings, the third meaning has much to commend it on grounds of practicality. Leave to enter ‘as a student’ determines an individual’s student status at the moment of entry. Thereafter, for the period for which leave to enter has been granted, the basis upon which the individual remains within the country is that leave to remain here for the period in question has been given to him ‘as a student’. His leave to enter is subject to the Code 2 prohibition on unauthorised employment, but that itself is subject to the standing authorisation granted to students by Chapter 4 to accept part-time employment. If those who are permitted to enter as students for a period continue to enjoy student status during that period there will be no room for doubt that, while they are subject to Code 2, they are entitled to work part-time under Chapter 4.

Thus far we have been considering the practicalities. We now turn to consider the language of the relevant provisions. The starting point is paragraphs 57 and 58 of HC 395. The provisions that these make for the grant of leave to enter for an appropriate period ‘as a student’ suggest that the individual will enjoy the status of a student during that period. Turning to the IDI, to which Chapter 4 is annexed, the context in which the word ‘student’ repeatedly appears is not consistent with the proposition that the status of student only applies to a person admitted as a student so long as his attendance on the course is satisfactory. We will give some examples:

poor attendance may signify that a student cannot support himself without working or that his intentions are not to study at all. (Annex A 2.)

when a student is prevented by lack of funds from continuing his course. (Annex A 7.8)

These passages, together with Chapter 4 itself, leave us in no doubt that the natural meaning of the word ‘student’ in the IDI is a person who has been given leave to enter ‘as a student’. This, coupled with the practical considerations considered above, has led us to conclude that Mr Zhou’s first ground of challenge of the Secretary of State’s decision is made good. Mr Zhou remained at all material times a ‘student’ for the purposes of Chapter 4. His part-time employment at Waitrose was authorised. He was not in breach of any entry condition, and the decision to remove him was unlawful.

If the Secretary of State considers it objectionable that those who have been given leave to enter as students are not pursuing their studies, the appropriate course would seem to us to be to take steps to remove them for that reason. At present the appropriate way of doing this would seem to be to curtail, under section 3(3)(a) of the 1971 Act and paragraph 323 of HC 395, the period for which the student has been given leave to enter, and then to remove the student under section 10 of the 1991 Act. The former step would give rise to the right of an in-country appeal. If the Secretary of State wished to avoid this, it would be open to him to make the actual pursuit of a course of study a condition of entry as a student, so that breach of this condition would give rise to a right to removal under section 10 of the 1999 Act which was not subject to the right of an in-country appeal. To date he has not chosen to take such action, and there may well be good reason for this.

Our decision on ground 1 makes it unnecessary to consider Ground 2. We shall, however, shortly state why we consider that this ground is not made out. There were two reasons why Mr Zhou’s solicitors urged the Secretary of State to investigate the position at Brooklands College. Initially they contended that Brooklands’ complaints of Mr Zhou’s poor attendance were untrue. This allegation was, however, subsequently abandoned. There can, accordingly, be no valid complaint that failure to investigate it was material to the Secretary of State’s decision. Secondly the solicitors complained of the attitude of Brooklands to those students who sought to remove their clientele without paying a full year’s fees. The Secretary of State rightly took the view that these allegations did not bear upon the decision to remove Mr Zhou.

In a written summary of his submissions handed in to us by Mr Jay at the trial he summarised Mr Zhou’s second ground as follows:

This was the first occasion on which Mr Zhou’s case was put in this way. Having regard to the fact that at the time of the relevant decisions Mr Zhou was challenging the assertion that his attendance was poor, we do not consider that there is any merit in this novel formulation.

For the reasons that we have given, Mr Zhou’s claim to judicial review succeeds. We anticipate that it will suffice for us simply to quash the Secretary of State’s decision to remove him.

Appeal Allowed

Respondent to pay appellant’s costs (to include the costs of proceedings before Keith J on 17 December 2002) to be subject to detailed assessment if not agreed.

Respondent’s decision of 11 December 2001 seeking to remove appellant from the United Kingdom to be quashed.