Nyanhi, R (on the application of) v Secretary of State for the Home Department

1. MR JUSTICE MAURICE KAY: This is an application for judicial review of a decision of an immigration officer acting on behalf of the Secretary of State for the Home Department, refusing the claimant leave to enter as a student.

2. The claimant is now 43 years of age. He is a citizen of Zimbabwe. On 5th September 2002, he arrived in this country on a flight into Gatwick Airport and sought leave to enter as a student. It is an important feature of this case that the claimant had not sought entry clearance in advance, whilst in his home country. He arrived at Gatwick and made his application there, that being the first occasion upon which the immigration authorities were aware that it was to be made.

3. In the event, he was interviewed by an immigration officer, after which the immigration officer refused leave to enter. The document issued by the immigration officer to the claimant at that time, stated:

"You have asked for leave to enter the United Kingdom in order to study health and social care, but I am not satisfied that you are able and intend to follow a full-time course of study that meets the requirements for admission as a student. Furthermore, I am not satisfied that you intend to leave the United Kingdom on completion of your studies."

The same document communicated removal directions for removal that same day to Zimbabwe. However, such removal was suspended upon an indication of an application for judicial review and the claimant remains in this country.

4. Before dealing with the grounds of challenge, I ought also to refer to a second document, which came into existence at about the same time as the formal document issued to the claimant. It is the immigration officer's "Refusal of Leave To Enter Report" also dated 5th September 2002. It repeats the wording on the document that had been issued to the claimant but then sets out, in report form, the approach of the immigration officer. It is in these terms:

"Passenger sought leave to enter the United Kingdom for a period of two years to study health and social care at BETEC Management College. Course fees of £2855 was paid for the first year with £275.00 outstanding.

The 42 year old passenger's last course of study was twenty-three (23) years ago, 1979 when he gained 3 O' Level exams - English, General English and Mathematics. Since 1979 he worked in a bakery, butchers and supermarket losing employment in 1999 and has since been buying and selling clothes. He has no permanent stall and therefore his means of finance is limited. He claims that his wife is the main source of income for the family of 5, he has no savings or property and at times depends on his brother-in-law (on his sister's side).

His brother-in-law who lives in Zimbabwe paid for passengers school fees, accommodation and airline ticket. The sponsor owns a driving school and has a family of 5 to support.

Comparing the passenger's qualifications and subsequent employment with the intended course of study, a logical pattern is not reflected. Further, given the current economic situation in Zimbabwe and the sponsor's own financial responsibilities it is highly doubtful that the passenger can genuinely afford to study in the United Kingdom. I was not altogether satisfied his intentions were as stated and therefore he was refused entry."

5. It is immediately apparent from that report that, whereas the formal document issued to the claimant referred to two reasons for refusing him leave to enter, the report refers also to a third reason, namely the current economic situation in Zimbabwe and the sponsor's own financial responsibilities, rendering it highly doubtful that the claimant could genuinely afford to study in the United Kingdom.

6. The relevant provision, in relation to those who seek leave to enter the United Kingdom as a student, is paragraph 57 of the Immigration Rules HC 395. The material parts read as follows:

"The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

(i) has been accepted for a course of study at:

(a) a publicly funded institution of further or higher education; or

(b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or

(c) an independent fee paying school outside the maintained sector;

(ii) is able and intends to follow...

(b) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study period week of a single subject or directly related subjects...;

(iii)...; and,

(iv) intends to leave the United Kingdom at the end of his studies; and

(v) does not intend to engage in business or to take employment, except part-time or vacation work undertaken with the consent of the Secretary of State for Employment; and

(vi) is able to meet the costs of his course and accommodation and the maintenance of himself and any dependents without taking employment or engaging in business or having recourse to public funds."

It is common ground that each of the requirements (i- vi) must be met.

7. The case for the claimant is that it was not open to the immigration officer to refuse him leave to enter as a student, either on the two bases which were communicated to him in the formal document, or on the basis of the third reason referred to in the report. I therefore address those matters.

8. The first requires consideration of whether the immigration officer was entitled not to be satisfied that the claimant was able and intended to follow a full-time course of study that met the requirements for admission as a student.

9. The contemporaneous documentation about the course is contained the following. There was a letter dated 10th June 2000 from BETEC Management Education Training College, in North London, to the claimant at his home address in Zimbabwe, certifying that he had been offered a place at the college to follow a full-time course of study, leading to a GNVQ qualification in health and social care. The course was to start on 9th September 2002 and last for 2 years. The date of the first examination was to be June 2003. I infer that there would be a further examination in the summer of 2004. That letter records "fees paid 1 year".

10. There is then a letter dated 16th July 2002, in the form of a partly receipted invoice from the college to Mr Abraham Madzorera, the proposed sponsor of the claimant. It records that the course fee was to be £1,700, rent for 26 weeks was to be £1,430 and the amount paid at the date of the invoice was £2,855, leaving a total amount owing of £275. A letter of the same date, 16th July 2002, to the claimant, thanked him for his interest in the college and referred to " the course fee paid in full". It went on to confirm that a place had been reserved for him and gave him details of registration and the commencement of lectures in September 2002.

11. So far as the sponsor, Mr Madzorera, is concerned, there was a letter from him "to whom it may concern", dated 31 August 2002, stating that the claimant would be attending training in health and social care, with BETEC Management Education and Training College commencing on 9th September 2002, adding "I will be paying for his tuition fees and accommodation". I am invited to deal with this case on the basis that all those documents were in fact before the immigration officer. In addition, the immigration officer had the benefit of having conducted the interview with the claimant. There is a copy of that before me. In the interview the claimant frankly conceded that he could not afford the course from his own resources. He said that he had chosen the health and social care course because it held out the opportunity of good avenues for employment, not least because nurses were leaving Zimbabwe, resulting in a shortage.

12. So far as the sponsor is concerned, he referred to him as being "like a blood brother". He described the sponsor as being the owner of a driving school, with a wife and three children, one of whom attended a private school. The wife also worked as a dress maker. Later in the interview, the claimant indicated that he did not intend to work in this country and that his means of support would be by the opening of a student account into which the sponsor would make monthly payments.

13. Against that factual background, the question therefore has to be asked whether it was open to the immigration officer to conclude that the claimant was, did not have the ability and intention to follow the course in question.

14. On behalf of the Secretary of State Mr O'Connor relies upon the parts of the immigration officer's report which draw attention to the claimant's age and the substantial period of time since the completion of his previous studies, in 1979, coupled with his subsequent employment history. He suggests that the immigration officer was entitled not to be satisfied as to the claimant's ability and intention with regard to the health and social care course against the background of that personal history.

15. On behalf of the claimant Mr Ehiribe draws attention, first, to the immigration directorate's instructions to immigration officers on the subject of assessing the ability to follow a course, and secondly, he seeks to derive support for the claimant in the authorities. The immigration directorate's instructions (IDI) appear to contemplate circumstances in which an immigration officer takes any doubts he has about ability to the principal of the establishment at which the applicant seeks to be educated. It does seem from the documents as a whole that there probably was some contact between the immigration officer and the college. Be that as it may, the authorities relied upon by Mr Ehiribe include R v Chief Immigration Officer, Bradford Airport ex parte Hussain [1970] 1 WLR 9, in which Lord Parker CJ stated at pages 12 - 13:

"It would be quite wrong for an immigration officer to take upon himself to ascertain the exact degree of education of an applicant in order to decide [for himself] whether [the applicant] would benefit from the course."

16. In addition to Hussain , Mr Ehiribe also relies on a passage in the fifth edition of MacDonald's Immigration Law and Practice, paragraph, 9.4(3) which is in these terms:

"However, immigration officers should not normally attempt to second-guess decisions by colleges of enrolment as to the students ability to follow the course. Later on, it will become easier to assess ability, as students progress and pass or fail examinations."

17. On this first issue the question simply becomes this: was it open to the immigration officer, on public law criteria, to conclude that the claimant lacked the relevant ability or intention in relation to the course? In my judgment, it was not. The course in question was not one of great complexity or one inherently outside the ability of a person with a few O' levels years ago and intervening experience to pursue with benefit. In my judgment it was unreasonable, in the public law sense, for the immigration officer to conclude the contrary without more.

18. The second issue, relating to the intention of the claimant to leave the United Kingdom at the end of the course also, in my judgment, admits of a straightforward answer in favour of the claimant. Mr O'Connor frankly concedes that it is the part of the case upon which his ground is weakest. Mr Ehiribe refers to R v Immigration Appeal Tribunal ex parte Shaikh [1981] 3 All ER 29, in which Bingham J (as he then was) observed that, in the circumstances of that case, there had been no material to justify a conclusion that the applicant intended to stay on in this country willy nilly or had any ulterior or collateral purpose. In my judgment, there is simply no such material in the present case.

19. It follows from what I have said that, in relation to the two reasons advanced by the immigration officer, in the formal document that was issued to the claimant, I conclude that the reasons were not sustainable.

20. However, the matter in relation to the third issue is not so straightforward. The document relied upon by Mr O'Connor, namely the immigration officer's report, was undoubtedly contemporaneous with the formal document issued to the claimant. I have no difficulty in concluding that what was referred to in it was part of the reasoning which informed the decision. Moreover, as I have said, it is common ground that it is necessary for the claimant to satisfy all the requirements of paragraph 57, so if the immigration officer's reasoning in relation to any one of the subparagraphs survives scrutiny then the decision also survives judicial review.

21. The third issue can generally be subsumed under the heading of "cost". It requires consideration of the cost of tuition fees, accommodation and living expenses. On the basis of the contemporaneous documents, there is no doubt that the sponsor had provided the wherewithal for the first year's tuition fees. He had, so far as I can see, not been asked to pay for the second year at that stage or to provide any guarantee or security. If this was simply a matter of tuition fees, it would be difficult to refute the claimant's criticism of the immigration officer's decision, not least because the sponsor stated in his letter of 31st August, that is after he had already paid the first year's fees, that"I will be paying for his tuition fees". It is not difficult to conclude that that commitment referred to the second year.

22. However, the matter does not rest there. There is then the question of accommodation. The invoice suggests that what had been paid - and I infer all that had been asked for - was a accommodation in relation to 26 weeks. There is some ambiguity as to whether that means a 6 month period starting at the beginning of September or whether it is based upon a calculation of teaching periods during the whole or part of the first year.

23. Again, left alone, I can understand the claimant's concern about the immigration officer's decision to extend it beyond immediate accommodation costs. They had been paid. However, as Mr O'Connor observes, for no more than 26 weeks.

24. In my judgment, what this case ultimately turns on is the question of maintenance, in the sense of living expenses over and above the cost of accommodation in the form of rent. The question is whether the immigration officer was entitled not to be satisfied about the claimant's ability to finance his time in this country, during the course, without taking employment or engaging in business or having recourse to public funds.

25. Clearly, from the language of the report "it is highly doubtful that the passenger can genuinely afford to study in the United Kingdom" the immigration officer was not satisfied that he was able to meet all the costs, including his maintenance costs, without taking employment or engaging in business or having recourse to public funds. The only source of such maintenance was to be the sponsor. The interview contained a certain amount of information about the sponsor and his family but, in my judgment, it was such that justified the immigration officer in not being satisfied that the sponsor was a sufficient source of funding for the maintenance of the claimant during the 2 years of the course. All that was known to the immigration officer was that the sponsor owned a driving school, had a family of his own and that one of his three children was being privately educated. It was known that his wife worked as a dress maker and that the family lived in high density accommodation, albeit in a good area. However on any basis the maintenance costs of a 42 year old full-time student, living in London for 2 years, leaving aside questions of tuition fees and accommodation, would be significant.

26. What has troubled me about this case is whether it was sufficient for the immigration officer to conclude this aspect of it adversely to the claimant, without further enquiry. I have no difficulty in concluding that, in the material before him, the immigration officer was entitled to entertain the doubts which he expressed. I remind myself that this is not an application for leave to enter as a student which was advanced in circumstances of dishonesty or concealment. It was an application where an amount of information was provided and steps had been taken to pay for fees and accommodation in advance and there was documentation from the college and the sponsor, justifying the view that it was an application made in good faith.

27. In those circumstances, I did wonder whether it was appropriate for an immigration officer to decide the issue of ability to meet the costs adversely to the applicant without further enquiry. In the end, I have come to the conclusion that Mr O'Connor's submission is correct. It relates to the particular circumstances of an applicant for leave, who arrives at a point of entry without advance notice and applies for leave to enter as a student. In a very real sense the immigration officer is put on the spot. The applicant for leave has bypassed the entry clearance procedure which might have enabled questions and doubts to be resolved administratively, before the applicant left his home country. It is true that an immigration officer, put on the spot, in the manner that occurred in this case, might see fit to permit the applicant to enter the country temporarily while further enquiries are pursued with the sponsor in the home country, in order to obtain further documentation, including possibly accounting or banking documentation, which would support the case. That no doubt could have been done. The question is whether it was a matter of legal obligation. In my judgment it was not. It is for the applicant who has chosen to put the immigration officer on the spot rather than pursue his application via the entry clearance system to satisfy the immigration officer as to the matters set out in paragraph 57.

28. It may be possible that the applicant may be able to do that by producing to the immigration officer precisely the kind of documents which will allay the doubts which the immigration officer entertained in this case. However, that was not so here. The claimant chose to make his application in the way that he did and I do not consider that there was a legal obligation upon the immigration officer to pursue enquiries and to obtain documents from or about the sponsor and his finances, before making a decision.

29. Mr O'Connor seeks to rely on R v Secretary of State for the Home Department ex parte Bhambra [1985] IAR 28, in which Mann J drew the distinction in relation to a sponsor's financial position between assertion and demonstration. I do not consider the facts of the present case resemble those in Bhambra but I do consider that what the immigration officer was faced with in this case was permissibly assessed by him as being no more than an assertion of the sponsor's ability to finance the matters with which paragraph 57 is concerned and that he was entitled, without further enquiry, to conclude this part of the enquiry adversely to the claimant. Although the claimant has succeeded on the other grounds which were advanced, his failure in relation to this one must mean that his application for judicial review fails.

30. I reach that conclusion without pleasure because it may be that the claimant would or will be able to satisfy an immigration officer about the means of the sponsor to finance this project through to its conclusion. I know not. However, as a result of my judgment, the decision of the immigration officer stands. It would, of course, be open to the claimant, upon a removal to Zimbabwe, to make a fresh application for entry clearance.

31. Thinking aloud, and no more than that, I do wonder whether the Secretary of State might be prepared to reconsider the matter on the production of further financial information from or about the sponsor within a short period of time, rather than moving the entire sequence of events back to square one.

32. MR JUSTICE MAURICE KAY: Thank you both very much.

33. MR EHIRIBE: We have been legally aided I, earlier on, did not have a certificate, but those instructing me said it was put in for approval on Friday, last Friday.

34. MR JUSTICE MAURICE KAY: Do you anticipate getting a certificate in the next seven days?

35. MR EHIRIBE: Yes my Lord.

36. MR JUSTICE MAURICE KAY: Upon lodging the certificate within seven days you can have the appropriate order for assessment.

37. MR EHIRIBE: I am most grateful my Lord.

38. MR JUSTICE MAURICE KAY: Mr O'Connor, would you draw to the Secretary of State's attention to my thinking aloud. Thank you very much.