Anwar v Secretary of State for the Home Department

This is an appeal from the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) promulgated on 2 March 2015. By that decision Deputy UT Judge Rimington held that the Appellant had breached an immigration condition attached to his leave to remain in the United Kingdom (“UK”). The UT allowed the appeal on another point, that the Secretary of State had failed to appreciate and exercise her discretion, and remitted the case to her. Nevertheless, the Appellant appeals against the decision by the UT that he was in breach of an immigration condition.

Permission to appeal was granted by Lewison LJ after a renewed application at an oral hearing on 5 May 2016.

It is agreed that the following two issues of law arise in the present appeal:

The essential factual background is not in dispute. I shall have to return towards the end of my judgment to certain factual matters which are in dispute.

The Appellant, who is a national of Pakistan, was born on 11 August 1990.

On 29 October 2009 the Appellant was granted entry clearance as a Tier 4 (General) Student until 31 January 2011.

On 17 February 2011 he was granted further leave to remain as a Tier 4 (General) Student until 23 May 2013 on the basis of documents showing that he was to study for a Diploma in Business Management at Grafton Management College.

On 21 May 2013 the Appellant made an application for further leave to remain as a Tier 4 (General) Student. On 7 August 2013 the Secretary of State refused that application, in part on the ground that he had been in breach of an immigration condition attached to his leave to remain. The documentation supplied by the Appellant showed that, from 14 March 2011 to 4 March 2013, he had been a student at another institution, DVC College. It should be noted that this was in addition to his course at Grafton Management College and not instead of it.

The First-tier Tribunal (“FTT”) heard the Appellant’s appeal against that decision on 23 September 2014 and dismissed it on 23 October 2014. On the issue which is material for present purposes, the FTT (Judge Wiseman) found that the Appellant had breached an immigration condition. At paras. 40-44 he said:

“40.

However on what I might call the most substantial issue before me, the position is very much less favourable for the appellant.

41.

The Appellant somewhat strangely told me that he studied for three days a week at the college in respect of which he was provided with a CAS and for two days a week at another college altogether following an entirely different course; he may have had the best intentions in seeking some kind of double qualification but I am afraid that this process failed utterly to produce the right result.

42.

It is certainly suggested in the guidance that a supplementary course may be taken to the main one (evening studies are given as an example) but I do not consider that studying for three days in one college and two days in another can possibly lead to the latter being described as ‘supplementary’ only, it is a virtually equal division of time. In addition, the guidance makes clear that the supplementary course should not interfere with the studies at the primary college and here the appellant in this case falls down completely; he failed his studies in his main college to the extent of not emerging with any qualification at all and somewhat bizarrely has only the qualification from his suggested supplementary college. All of this shows very clearly that his studies at the supplementary college for two days must by definition have significantly interfered with his results at his primary college. He clearly needs to be spending all his time studying his main course to succeed.

43.

The appellant in my view clearly breached the terms of his visa and the refusal under paragraph 322 (3) with reference to the relevant paragraph in the rules I have quoted above, is clearly justified.

44.

Both in the skeleton argument and before me, Mr Rahman used every argument possible to try to get round this fundamental difficulty; he referred to the fact that the condition in question was not endorsed on the appellant’s passport and even suggested that the condition did not attach to the appellant’s leave ‘automatically’ and that it was somehow a discretionary matter or a matter in which the appellant should have been approached to offer an explanation. I am afraid I do not accept any of these propositions; the rule is clear and has to be complied with.”

With the permission of the FTT (granted on 9 December 2014) the Appellant appealed to the UT. The UT heard the appeal on 2 February 2015 and decided it on 2 March 2015. As I have already mentioned, the UT (Deputy Judge Rimington) allowed the appeal to a limited extent but, importantly for present purposes, confirmed the finding that the Appellant had breached an immigration condition.

The UT in this respect followed its own earlier decision in Bhimani (Student: Switching Institution: Requirements) [2014] UKUT 00516 (IAC). The UT agreed with the FTT that there had been a breach of an immigration condition for the purpose of para. 322(3) of the Immigration Rules.

Before the UT the Appellant expressly reserved his position as to the correctness of Bhimani and now appeals on the basis that that decision was wrong in law. The essential reasoning of the UT on the point which now concerns this Court is to be found at para. 18 of its judgment:

“At the hearing Mr Malik concentrated on grounds three and four of the application for permission and requested to reserve his position in relation to Section 50. He accepted that I would follow the decision in Bhimani (Student Switching Institution: Requirements) [2014] UKUT 00516 (IAC). In effect where a student chooses to study at another institution holding a different sponsor licence number from that of the institution where he or she was granted leave to remain to study, he is required to make a fresh application for leave to remain. Judge Allen accepted that it was clear from Section 3(1)(c) of the Immigration Act 1971 that a person given limited leave to enter or remain in the UK may be given that leave subject to conditions which include the provisions inserted by Section 50 of the Borders, Citizenship and Immigration Act 2009, that is a condition restricting his studies in the UK and in effect that entry clearance in the case of a Tier 4 (General) Student will be granted subject to conditions including the requirement that the student is not allowed to study except at the institution which the Confirmation of Acceptance for Studies checking records service records as their sponsor.”

As will become apparent later in this judgment, when I set out the material legislation, section 4(1) of the 1971 Act requires that, if a condition is to be attached to leave to remain, written notice of that condition must be given to the person affected. Neither the FTT nor the UT explained in terms how section 4(1) was complied with in the present case, perhaps because of the way the case was presented before them and, in particular, because it was accepted (certainly in the UT) that Bhimani should be followed at that level of the legal system.

When permission to appeal in the present case was first refused on the papers by Simon LJ, it was on the ground that the case had become academic because the Appellant’s appeal had succeeded in front of the UT. As I have already mentioned, the outcome of the appeal was that the UT remitted the case to the Secretary of State for reconsideration.

In granting permission at the oral hearing on 5 May 2016 Lewison LJ noted that the normal rule in ordinary litigation is that appeals are made against orders rather than against the reasons for making those orders. That was decided in Lake v Lake [1955] P 336, although, as Lewison LJ observed, where the appellant does not get all the relief from the lower court that he is entitled to, the court nevertheless has the power to entertain an appeal: see Curtis v London Rent Assessment Committee [1999] QB 92.

Lewison LJ also noted that the right of appeal to this Court in cases of the present kind is conferred by section 13 of the Tribunals, Courts and Enforcement Act 2007. Subsection (1) of that section provides:

“For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision by the Upper Tribunal other than an excluded decision.”

Lewison LJ said that “any point of law arising from a decision” is wider than the normal rule for appeals. He said:

“I am satisfied that this Court does have jurisdiction to entertain the appeal, and that if the appeal were to succeed it would significantly affect any future decision which the Secretary of State were to make in relation to the appellant’s application for an extension of leave to remain.”

I respectfully agree with those observations.

There is one further point which should be mentioned at this stage, because it too goes to the question of whether this appeal has become academic.

Since the UT decision, on 13 August 2015, the Secretary of State made a fresh decision, again refusing the application for leave to remain as a Tier 4 (General) Student. However, the Secretary of State did not cite the breach by the Appellant of an immigration condition as a reason for this decision. Nevertheless, the Appellant submits that this appeal has not become academic. The Secretary of State has not suggested that it has become academic; indeed she maintains that the Appellant was in breach of a condition which was attached to his leave to remain in 2011.

In my view, it is appropriate for this Court to consider the points of law which are raised, because the Appellant continues to have an interest in the matter. As things stand, it has been held by a judicial body that he was in breach of an immigration condition. As will become apparent later, that could, at least in principle, render him liable for a criminal offence. In any event, that is something which is on his record and may affect future applications he may make, perhaps if he wishes to go to another country elsewhere in the world.

Section 3 of the 1971 Act, as amended, provides (so far as material):

“(1)

Except as otherwise provided by or under this Act, where a person is not a British citizen – …

(c)

if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely –

(i)

a condition restricting his employment or occupation in the United Kingdom;

(ia) a condition restricting his studies in the United Kingdom;

(ii)

a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; … ” (Emphasis added)

Sub-para. (ia) was introduced by way of an amendment made by section 50 of the Borders, Immigration and Citizenship Act 2009 (“the 2009 Act”).

Section 4(1) of the 1971 Act, so far as material, provides:

“The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) … shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected; except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.” (Emphasis added)

Section 24 of the 1971 Act creates various criminal offences. One of those offences is where a person who is not a British citizen who has limited leave to enter or remain in the UK “knowingly … fails to observe a condition of the leave”: section 24(1)(b)(ii). The maximum sentence for such an offence is imprisonment of six months.

Section 10 of the Immigration and Asylum Act 1999, so far as material, provides:

“(1)

A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an Immigration Officer, if –

(a)

having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; …

(8)

When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.”

Para. 322 of the Immigration Rules (HC 395) (so far as material) provides that the grounds on which leave to remain and variation of leave to enter or remain should normally be refused include:

“(3)

failure to comply with any conditions attached to the grant of leave to enter or remain”.

In relation to leave to remain as a Tier 4 (General) Student relevant provisions are set out in para. 245ZY of the Immigration Rules. In particular sub-para. (c) provides that:

“Leave to remain will be granted subject to the following conditions:

(i)

no recourse to public funds,

…

(iii)

no employment except: [more specific terms are then set out];

(iv)

no study except:

(1)

study at the institution that the Confirmation of Acceptance for Studies checking service records as the migrant’s Sponsor or where the migrant was awarded points for a visa letter, study at the institution which issued that visa letter unless the migrant is studying at an institution which is a partner institution of the migrant’s Sponsor;

…

(3)

supplementary study;

…”

On behalf of the Appellant Mr Zane Malik submits that the power conferred upon the Secretary of State by section 3(1)(c)(ia) of the 1971 Act merely permits the imposition of “a condition restricting his studies in the United Kingdom.” Mr Malik submits that that power does not enable the Secretary of State to impose a condition restricting the location of a person’s studies in the UK. He submits that, if Parliament had intended to require a student to study at a particular institution, it could easily have said so.

In the circumstances therefore Mr Malik submits that the Secretary of State had no power in the present case to impose a condition requiring the Appellant to study only at Grafton College of Management.

In support of his submission Mr Malik relies on the decision of this Court in Obed and Others v Secretary of State for the Home Department [2008] EWCA Civ 747.

Mr Malik also prays in aid the principle of construction that a penal or similar provision should be interpreted strictly, because the liberty of the individual may be at stake. He reminds this Court that there are two reasons for this.

One is that a person’s failure to observe a condition of the leave may attract criminal liability under section 24 of the 1971 Act.

The second is that breach of such a condition may render a person liable to be removed from the United Kingdom because he has not observed a condition attached to the leave: see section 10 of the Immigration and Asylum Act 1999. A decision to remove has two further consequences: there is no right to appeal from within the United Kingdom and, more pertinently, a person may be detained pending removal.

I am unable to accept those submissions. In my view, the express words used by Parliament in enacting the provision are sufficiently wide to include a condition restricting the location of a person’s studies in the UK. Mr Malik accepts that the provision is broad enough to restrict the type of course that a student can undertake. He also accepts, as I understand it, that there can be imposed a condition restricting the duration of a person’s studies in the UK. I can see no logical reason to distinguish that situation from the issue of which university or other educational institution to which a person may be restricted.

The decision of this Court in Obed, if anything, supports that interpretation rather than the one for which Mr Malik contends. In that case the judgment of this Court was given by Sedley LJ (the other members of the Court were Longmore and Moses LJJ). The issue as formulated by the Court at para. 1 was as follows:

“What are the legal consequences if a foreign student who has obtained leave to enter or remain in order to follow a named course embarks on a different course or fails the course examinations?”

That issue was relevant in that case because of the material provisions of the Immigration Rules governing leave to enter or remain as a student and leave to enter for the purpose of re-sitting an examination. Central to the case was the requirement of para. 60(v) of the Rules that a student who wanted an extension of leave to remain had to produce “satisfactory evidence of regular attendance in his course of study, including the taking and passing of any relevant examinations”.

As the Court observed at para. 2, a series of determinations by what was then the Asylum and Immigration Tribunal had held this to confine the student to the course for which leave to enter was given, and to make passing the course examinations a prerequisite for any extension of leave. Having heard full argument the Court was satisfied that that interpretation was inconsistent with the 1971 Act and with the Immigration Rules read as a whole.

This Court held at para. 3:

“… In our judgment, the grant of clearance to enter the United Kingdom as a student does not confine the entrant to a single course of study and failing an examination does not always negate satisfactory progress.”

In order to understand the reasoning of the Court in Obed, it is important to appreciate that the wording of section 3 of the 1971 Act as it stood at the material time did not include the provision which now falls to be construed in the present appeal, in subsection (1)(c)(ia). The section did not have any provision relating to the studies of a person in the UK. This Court held, at para. 6:

“The importance of this empowering provision is that, with one arguable exception, it gives the Home Secretary no authority to impose conditions on a student entrant as to the course he or she is to follow. The arguable exception is in the words ‘or occupation’ in section 3(1)(c)(i). Their evident purpose is to restrict what businesses a self-employed entrant may conduct, but Ian Hutton for the Home Secretary seeks to keep open the submission that it is wide enough to include a student entrant’s course of study. For reasons to which we turn next we do not have to decide this point; we confine ourselves to saying that its apparent meaning is the one reflected in rule 57(vii), which requires the intending student to satisfy the ECO that, within certain limits, he ‘does not intend to engage in business or take employment’ while here.”

Mr Malik placed particular emphasis upon what was said at para. 4 of the judgment in Obed.

“Before we turn in detail to our reasons, it is relevant to recall that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world’s principal language of commerce, law and science; it furnishes a source of revenue (at rates which, by virtue of an exemption from the Race Relations Act 1976. substantially exceed those paid by home students) of frequently critical budgetary importance to the United Kingdom’s universities and colleges as well as to many independent schools. We therefore find it unsurprising that the legislation and rules, correctly construed, do not place arbitrary or unnecessary restrictions on what foreign students can study here. It does not require evidence to remind us that it is not uncommon for a student to realise that he or she has made an unwise choice, or perhaps is being poorly taught, and to change courses or institutions with beneficial results. A rule preventing students from making such a change might well be arbitrary or unnecessary in the absence of case-specific reasons.”

In my view, those considerations cannot stand in the way of what is the clear language of the 1971 Act, as now amended by section 50 of the 2009 Act.

If anything, the fact that the legislative history of the 2009 Act includes the then recent decision of this Court in Obed, of which it can be assumed Parliament was aware, suggests that the intention of Parliament in enacting the amending legislation was to fill what was perceived to be a lacuna in the powers of the Secretary of State.

Mr Malik suggested in the course of his submissions before this Court that the necessary consequence of his submission on the first issue would be that the relevant provisions of the Immigration Rules as they now are would be unlawful since the Secretary of State had no power in section 3 of the 1971 Act to make them. I reject that submission, because I have come to the view on the first issue that the Secretary of State clearly does have power to impose a condition which restricts the institution at which a student given leave to enter or remain may study.

Accordingly I would reject the Appellant’s first ground of appeal.

On behalf of the Appellant Mr Malik submits that a person who is granted leave to remain as a Tier 4 (General) Student is not automatically subject to a requirement, imposed as a condition of his leave, that he may not study at another institution.

He submits that section 3(1) of the 1971 Act gives a wide discretion to the Secretary of State, including a discretion to grant leave to remain subject to conditions. Although the terms of para. 245ZY of the Immigration Rules provide that leave to remain “will be granted subject to the following conditions” (which are then set out and include a condition as to place of study), Mr Malik submits that, for a condition actually to be imposed, there must be a further administrative act to apply the condition in the individual case.

In support of that submission Mr Malik relies on the decision of the Supreme Court in R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192. The main judgment was given by Lord Dyson JSC (with whom Lord Hope DPSC, Lord Walker, Lord Clarke and Lord Wilson JJSC all agreed). In that case there was debate about the source of the power to regulate entry into and stay in the UK of persons who require leave to enter or remain. It was submitted on behalf of the Secretary of State that the source of that power is the prerogative. It was further submitted that the making and laying of rules before Parliament is an exercise of the prerogative power. At para. 44 Lord Dyson said:

“In my view, it is the 1971 Act itself which is the source of the Secretary of State’s power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain … The language of these provisions, especially section 3(1)(b)(c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even where leave would not be given under the immigration rules.”

On the basis of that proposition Mr Malik submits that, in the present context, the Secretary of State is wrong to say that the Immigration Rules themselves automatically attach certain conditions to the grant of leave to remain. He submits that, if that were so, the Secretary of State would not be able to grant leave to remain even in circumstances which do not satisfy the requirements of the Immigration Rules. He submits that would be contrary to the fundamental statement of principle in Munir.

Mr Malik also relies on the terms of section 4 of the 1971 Act, as explained by this Court in Ahmadi v Secretary of State for the Home Department [2013] EWCA Civ 512; [2014] 1 WLR 401. The only substantive judgment in that case was given by Sullivan LJ, with whom Sir Stanley Burnton and Briggs LJ agreed. At para. 22 Sullivan LJ said:

“… Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power ‘shall be exercised by notice in writing given to the person affected’. The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised. Mr Blundell’s submission [for the Secretary of State] invites us to read section 4(1) as though it said: ‘and notice in writing shall be given to the person concerned of the exercise of the power.’”

It is clear that the Court rejected that submission which had been made on behalf of the Secretary of State. Section 4(1) of the 1971 Act does not merely require written notice of the exercise of the relevant power to be given; rather it is only by written notice that the power can be exercised at all. In the present context that means that a condition which is said to be attached to the grant of leave to remain can only be imposed by way of notice in writing given to the person affected.

It is next important to recall the fundamental constitutional principles which were set out by the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604. In that case the House of Lords overruled the decision of this Court in R v Secretary of State for the Home Department, ex p. Salem [1999] QB 805. That case concerned the interpretation of regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 (SI 1987 No. 1967), as inserted by the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996 No. 30). The appellant in that case had claimed asylum on arrival in the UK from Lithuania and was awarded income support benefit. An immigration officer granted her limited leave to enter and referred her case to the Secretary of State. A Home Office official noted in an internal departmental file that, for reasons set out in a draft letter, refusal was appropriate and the case was “hereby determined.” Accordingly, from that date, the Home Office treated the appellant as a person whose claim had been “recorded by the Secretary of State as having been determined … on the date on which it is so recorded within the meaning of the relevant provision of the Regulations.” The High Court and the Court of Appeal considered themselves to be bound by the decision of this Court in ex p. Salem. The House of Lords (Lord Bingham of Cornhill dissenting) allowed the appeal. The principal speech was given by Lord Steyn, with whom Lord Hoffmann and Lord Scott expressly agreed. In addition Lord Millett gave a short concurring speech, saying that he had intended to dismiss the appeal until he read the speech of Lord Steyn and had then been persuaded to change his mind.

The House of Lords held that there had been no relevant determination within the meaning of the Regulations because notice of it had not been given to the appellant. Lord Steyn said, at para. 28:

“This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are over-ridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. …”

At para. 30 Lord Steyn continued:

“Until the decision in ex p. Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law. … Where decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication.”

At para. 31 Lord Steyn concluded:

“If this analysis is correct, it is plain that Parliament has not expressly or by necessary implication legislated to the contrary effect. The decision in question involves a fundamental right. It is in effect one involving a binding determination as to status. It is of importance to the individual to be informed of it so that he or she can decide what to do. Moreover, neither cost nor administrative convenience can in such a case conceivably justify a different approach. … Given this context Parliament has not in specific and unmistakable terms legislated to displace the applicable constitutional principles.”

In the present case there is no dispute that notice in writing of the relevant decision, that is the imposition of the condition restricting the institution where the Appellant was permitted to study, was required. However, Mr Tom Hickman submits on behalf of the Secretary of State that such a requirement of notice was satisfied on the facts of this case.

At one time in the present case there was some suggestion that notice was required under the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000 No. 1161). However, as Mr Hickman submitted and as appeared to be common ground at the hearing before us, that Order is in fact concerned with entry clearance, which is to have effect as leave to enter (Article 2 of the Order) and not with leave to remain. In the present context, the requirement for notice in writing is to be found in section 4(1) of the 1971 Act.

Our attention was drawn by both parties to the decision of the High Court in R (Afzaal) v Secretary of State for the Home Department [2014] EWHC 2215 (Admin), a decision by Mr Robin Purchas QC (sitting as a Deputy High Court Judge). In that case the claimant came to this country from Pakistan, having obtained entry clearance as a Tier 4 (General) Student to undertake a course at the JFC Training College. However, he was not satisfied with its educational standards and changed to the Walthamstow Business College. Later he applied for leave to remain so as to be able to study at the Bedfordshire Business School. Leave to remain was refused by the Secretary of State. One of the reasons for that refusal was that the original entry clearance had prohibited the claimant from studying at an institution other than the sponsor body and that he was therefore in breach of that condition. He applied for judicial review of that decision. His grounds for judicial review included the contention that there was no valid condition imposed on his original entry clearance because no condition had been specifically imposed to prevent study at another institution.

The Deputy Judge was concerned with materially the same provisions as we are, in particular section 3(1)(c)(ia) of the 1971 Act. In addition, he was concerned with the provisions of the 2000 Order, in particular Article 3, which requires that the entry clearance must be endorsed with (a) “the conditions to which it is subject”.

So far as the requirement of endorsement in the 2000 Order was concerned, the Court held that “endorsement is not the same as the giving of notice and it does not depend on communication of the full effect of a condition to the reader. It is a note or reference that endorses on the entry clearance the application of the condition to which the reference is made”: see para. 45. On the facts of the case the Deputy Judge held that there was a sufficient endorsement on the face of the vignette that the conditions should include limitation to the particular identified sponsor body: see paras. 45-47 of the judgment.

Those passages which concern the requirements of endorsement in the 2000 Order are not strictly relevant in the present case. However, at para. 40 the Deputy Judge said:

“Section 3 of the 1971 Act clearly distinguishes the discretionary power to grant clearance and impose conditions under section 3(1) and the provision for rules to be made under section 3(2) that prescribe, among other things, ‘the conditions to be attached in different circumstances’. Thus under the rules made pursuant to section 3(2) of the 1971 Act the conditions to be attached in the case of the Tier 4 Student clearance are specified, that is that entry clearance will be granted subject to the following conditions which are then set out, including the no study condition. In my judgment, that does not require any further administrative action to impose the condition on the grant of clearance in accordance with the rules, subject to any further regulatory requirement such as is found in the 2000 Order.”

In the present appeal Mr Malik submits that that statement of the law is wrong. He submits that, in fact, a further administrative act is required and that the Immigration Rules do not in themselves automatically attach a “no study” condition to an individual person’s leave to remain. On behalf of the Secretary of State Mr Hickman submits that Afzaal was correctly decided.

It could be said that Afzaal can be distinguished on the basis that it concerned a situation where the claimant started to study at a different institution instead of the one in respect of which leave had been granted. As Mr Malik rightly submits, the present appeal is concerned with the situation where the student continues to study at the institution in respect of which leave to remain was granted but also studies at another institution in addition. However, it is clear from the reasoning of the Deputy Judge in Afzaal that he took the view that the provisions of the Immigration Rules of themselves were sufficient to impose a condition restricting a person’s studies in the UK without more and, in particular, that no further administrative act is required imposing such a condition in the individual case. When one goes back to the wording of the relevant provision in the Rules, it is clear that it refers to “no study except …”: see para. 245ZY(c)(iv) (my emphasis). In my view, that wording makes it clear that the restriction is to study only at the institution which sponsors the student migrant.

That brings me to the central question which is raised by the second issue in the present appeal: do the provisions of the Immigration Rules of themselves impose a condition restricting a person’s place of study in the UK or is some further administrative act required in the individual case? In my view, the Rules do not of themselves impose that condition; a further administrative act is required in the individual case. This is for the following reasons.

First, the language of the Rules themselves contemplates that such a condition “will” be imposed, not that it has been or is imposed.

Secondly, the language of section 4(1) makes it clear that the notice in writing must be given to the person affected. That language clearly focusses on the individual person, not just the world at large. The mere publication of the Immigration Rules does not constitute the giving of notice to the person affected.

Thirdly, as Mr Malik submits on the basis of the Supreme Court decision in Munir, it is always open to the Secretary of State to take a decision which is favourable to a person given leave to remain despite what the Rules say. If she chooses not to do so that would have to be made clear in the individual case.

Fourthly, Mr Malik’s submission is supported by the decision of this Court in Ahmadi. As I have said, that case decides more than that notice of the decision to impose conditions must be given in writing. It holds that it is only through giving notice in writing that the decision is taken at all.

Fifthly, this interpretation is consistent with the constitutional principles which lie behind the requirement of notice in writing, emphasised by the House of Lords in Anufrijeva. Those principles, which would be important in any context, such as social security benefits, which was the subject of that case, are reinforced by the consideration that, in the present context, there are potentially penal consequences which may flow from a breach of a condition attached to a person’s leave to remain: see section 24 of the 1971 Act.

Sixthly, the requirement that there must be individual notice in writing is not an unduly onerous one for the Secretary of State to have to comply with. It could easily be done and would be consistent with good administration.

As I have mentioned, in the present case the UT applied the earlier decision of the UT (Judge Allen) in Bhimani. It is necessary therefore to consider that decision now in more detail.

The essential facts of Bhimani can be gleaned from para. 2 of the judgment. The appellant had entered the UK on 25 November 2009 with entry clearance as a Tier 4 (General) Student. His leave was subsequently extended until 11 August 2014, but on 13 March 2013 his leave to remain was curtailed so that it would expire on 12 May 2013. On 11 May 2013 he applied for leave to remain in the UK. He had previously been granted leave to remain in order to study at Access College, London. However, in support of his application he provided an academic transcript from another college, One-Tech Training, showing that he had studied at that establishment for a diploma in Business Management between 6 June 2011 and 8 January 2013.

At paras. 22-27 UT Judge Allen said:

“22.

It is clear from s.3(1)(c) of the Immigration Act 1971 that a person given limited leave to enter or remain in the United Kingdom may be given that leave subject to conditions which include the provision inserted by s.50 of the Borders, Citizenship and Immigration Act 2009: a condition restricting his studies in the United Kingdom.

23.

It is important also to bear in mind the terms of s.3(2) which, as set out above, establishes that the Secretary of State shall from time to time lay before Parliament statements of the rules or changes in the rules laid down by her as to the practice to be followed in the administration of the Act for, inter alia, regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances.

24.

It is in this light that paragraph 245ZW(c)(iv)(1) has to be seen. The effect of this provision is that entry clearance in the case of a Tier 4 (General) Student will be granted subject to conditions including the requirement that the student is not allowed to study except at the institution which the Confirmation of Acceptance for Studies Checking Service records as their sponsor. That is a clear example of a provision made in accordance of s.3(2) of the 1971 Act.

25.

As regards s.4(1) of the Act, the effect of this is to require that powers under the Act giving or refusing leave to enter the United Kingdom are to be exercised by notice in writing given to the person. But the subsection goes on to make it clear that the requirement of notice in writing operates ‘unless otherwise allowed by or under this Act’, which in my view entails inter alia, that s.4 must be read in conjunction with s.3(2), itself enabling provisions such as paragraph 245ZW(c)(iv)(1).

26.

As regards the Immigration (Leave to Enter and Remain) Order 2000, Mr Malik drew my attention to the specific provision set out at paragraph 3(3)(a) which required the entry clearance to be endorsed with the conditions to which it is subject.

27.

However I interpret the biometric and residence permit, a copy which is at Annex D to the explanatory statement, as doing precisely that. As Mr Malik accepted, the reference number is the CAS number of Access College, London, and I think it is not straining a proper interpretation of the requirements of paragraph 3(3)(a) of the Order to read this as an endorsement of a condition to which the leave is subject, i.e. study at the college in respect of which that CAS is the reference.”

It is arguable that that case is not on all fours with the present case for two reasons.

The first is that some of the reasoning of Judge Allen (at paras. 26-27) concerned the application of the 2000 Order, in particular the meaning of an “endorsement”, whereas it is common ground in the present case that the 2000 Order is not material.

Secondly, that was a case where the appellant had ceased to study at the institution for which leave to enter was granted (if he had ever begun his studies there). That situation can be contrasted with the facts of the present case, in which the Appellant has always studied at the institution for which leave was given to him. What has happened is that, in addition to that course, he has chosen to study at another institution on another course. However, in my view, that factual distinction is not sufficient for the present Appellant to escape from the effect of Judge Allen’s reasoning in Bhimani at paras. 22-25. It is therefore necessary to examine that reasoning more closely to see if it is indeed correct.

Two things can be clarified straight away. First, section 50 of the 2009 Act, which is mentioned at para. 22 of Bhimani, is simply an enabling provision. As I have said when addressing the first issue in this appeal, that section amended section 3 of the 1971 Act so as to confer a power on the Secretary of State to impose a condition restricting a person’s studies in the UK. The fact that that power exists does not mean that it has been exercised in any given case. I do not understand Judge Allen to suggest otherwise.

Secondly, it might be thought that Judge Allen was saying in para. 25 that the requirement of notice in section 4(1) had been dispensed with in the present context because that was “otherwise allowed by or under this Act”. However, I do not think that is a correct reading of what Judge Allen was saying when para. 25 is read as a whole. As I read it, he was saying that section 4(1) has to be read “in conjunction with” (not “subject to”) section 3(2) and that section 3(2) enables provisions to be made such as those in the Immigration Rules which restrict a person’s place of study in the UK.

That then brings me back to the central point raised by the second issue in this appeal: whether the provisions of the Immigration Rules themselves are sufficient to impose a condition restricting the place of study and to give notice in writing of that condition or whether a further administrative act is required applying those provisions in the individual case. Judge Allen’s reasoning, at paras. 21-23, is clearly to the effect that the provisions of the Rules are sufficient by themselves to impose such a condition. As I have already mentioned when considering the decision in Afzaal, I do not agree.

In my view, for there to be an operative condition which restricts a person to study at only one particular institution, that condition must be communicated clearly to the person affected in the individual case.

Against that background of principle, I turn to the facts of the present case. The state of the evidence in this case is, on any view, unsatisfactory. By the time a case reaches this Court it should be possible to say with certainty what evidence was before the FTT and what was not. In this case that has not happened.

In this Court a witness statement was filed on behalf of the Secretary of State by Julia Nation, a lawyer in the Government Legal Department. She made that statement in part with the purpose of informing the Court of “the difficulties experienced in obtaining information relevant to this case”: see para. 3(b) of her witness statement dated 17 March 2017. At para. 8 she said that she could not confirm what was before the FTT. At para. 10 she referred to various documents recently identified by the Home Office, including the following:

The Appellant disputes that the grant letter of 17 February 2011 was received by him. Home Office records do not record whether the grant letter was actually sent: see the letter from the Government Legal Department dated 27 November 2017 at sub-para. (4). In those circumstances, the Secretary of State accepts that the grant letter was not adduced before the FTT or relied upon by her as the factual basis for the imposition of conditions on the Appellant’s leave to remain. Given that the Appellant contests that he received this letter, the Secretary of State accepts that it cannot now be relied upon in this appeal.

Furthermore, as appears from sub-para. (6) of that letter, the Secretary of State is not able to provide to this Court any leaflet that may have accompanied the Biometric Residence Permit (“BRP”), since that was prepared and sent by the Driver and Vehicle Licensing Agency and not the Home Office in 2011.

It is clear that the Appellant did receive a BRP. However, it is telling how a BRP is described in the letter of 17 February 2011 (which is clearly in a standard form even if it cannot be relied on in the present appeal):

“The Biometric Residence Permit is a residence permit which hold your biographic and biometric information and shows your immigration status and entitlements while you remain in the United Kingdom. The permit replaces the vignette (or sticker) and ink stamps previously placed in the passports of those granted permission to remain in the United Kingdom. …”

The letter said that there was an attached leaflet which “explains the conditions of your stay whilst in the United Kingdom.”

It is clear from those documents that the BRP itself did not set out the conditions attached to the Appellant’s leave to remain. It might conceivably be possible to work out from the CAS number which appears on the BRP that it referred to Grafton College of Management Sciences. However, while other conditions (that the Appellant was not to work more than 20 hours per week and was not to have recourse to public funds) did appear on the face of the BRP, there was no condition which explained that the only college he was permitted to attend was Grafton College.

If one turns to the leaflet, it is common ground that that was received by the Appellant. However, it makes it clear in its heading that it consists of notes “for information purposes only”. It then sets out a number of frequently asked questions with guidance in response to those questions. Under Question 2, which is headed “Can I change sponsor?”, the following guidance is given:

“Having been granted leave to remain as a Tier 4 (General) Student Migrant, you are restricted to studying at the sponsor institution which issued your confirmation of acceptance for studies and supplementary study. If you wish to change your place of study to a different sponsor institution, you should make a fresh application for leave to remain using the appropriate application form and paying the appropriate fee, no more than 3 months prior to the start date of your new course of study.”

There are two difficulties for the Secretary of State in so for as she seeks to rely on that leaflet. The first is that it does not have, nor does it purport to have, the status of an official document notifying a person of something as important as the conditions attached to his leave to remain in this country. No doubt it is useful for what it is, an information leaflet, but it is no more than that. Secondly, the leaflet does not spell out in terms that the only institution where the Appellant could study was Grafton College. This is made clear by the sentence “If you wish to change your place of study to a different sponsor institution …”. The Appellant never wanted to change his place of study. What he wanted to do, and did do, was to enrol with another college in order to study there in addition to his studies at Grafton College. It was never made clear to him that he was prohibited from doing so.

In my view, it is highly unsatisfactory that this should not be made clear to a person, not least because he may be liable for a criminal offence under section 24 of the 1971 Act if he breaches a condition attached to his leave to enter or remain.

On the facts of the present case, I have come to the conclusion that the actions taken by the Secretary of State did not succeed in attaching the intended condition to the Appellant’s leave to remain because they did not give him notice in writing as required by section 4(1) of the 1971 Act.

As to the law I have come to the conclusion that the UT decision in Bhimani is wrong. I have also come to the conclusion that the decision of the High Court in Afzaal is wrong. Neither of those decisions should be followed by lower courts and tribunals.

Accordingly I would allow this appeal on the Appellant’s second ground.

For the reasons I have given I would allow this appeal, but only on the second ground.

I agree.

As to the first ground, section 3(1)(c) of the 1971 Act confers upon the Secretary of State for good reason a wide power to impose conditions upon the grant of limited leave to enter or to remain. The language of sub-section (ia) – “a condition restricting his studies in the United Kingdom” – is in my view plainly capable of including a condition to restrict study to a particular institution. Even if there was any doubt about that, it would be removed by the legislative history.

As to the second issue, section 4(1) is concerned with communication. It requires that the broad power to impose conditions “shall be exercised by notice in writing to the person affected”. I agree that on the basis of the information provided by the Secretary of State, the necessary notice in writing was not given in this case and that in consequence, the Appellant was not made subject to the intended condition to study only at a particular institution, and therefore that he was not in breach of such a condition.

Drawing together the conclusions on both grounds, it is important that the Secretary of State retains wide-ranging powers to regulate the grant of leave to enter and leave to remain. It is also important that those who are subject to such decisions should be made unmistakably aware of what they can and cannot do. In the present case, discovery of the breach of the alleged condition arose from the Appellant himself artlessly sending documentation to the Secretary of State showing that he was studying at an additional college as well as at the college for which leave to remain had been granted: see para. 8 above.

This Court’s conclusion imposes no unreasonable demands upon the Secretary of State. All that is needed to satisfy the legislation is to communicate to an applicant when leave is granted a simple statement in writing of the relevant condition(s), setting out with clarity what is and what is not allowed, so that there can be no mistaking the obligations that arise and the serious consequences of non-compliance. Like my lord, I am unable to accept that the documentation that can be shown to have been sent in this case satisfied this modest requirement.