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

MRS JUSTICE DOBBS: In this case permission was granted by the Single Judge on 9th May to argue that paragraph 2A of Schedule 2 to the 1971 Immigration Act does not apply to indefinite leave to remain. The claimant challenges the decision of the defendant to suspend his leave to remain pending further police enquiries relating to alleged criminal activity.

The chronology of the matter is as follows. The claimant was granted indefinite leave to remain in the UK in December of 1999 and was issued with a British travel document for travel purposes to all countries valid for five years. It was renewed in 2004 and was endorsed with an "indefinite leave to remain" stamp. The claimant went to St Lucia on 22nd January 2006, returning on 19th March 2007. He was arrested by police, who were investigating both theft and deception offences and an offence of arson allegedly committed by him. There were two police forces involved: Gwent and Thames Valley. There was also a related civil claim in St Lucia. His travel document was seized. He was issued with the form IS96 (a notification of temporary admission for someone liable to be detained) on the following day. The defendant then suspended the claimant's leave to enter and this decision to suspend was confirmed in a letter of 2nd April 2007.

The claimant issued JR proceedings on 16th April. It is common ground in this case that no charges have been brought against the claimant.

On 6th June of this year, Bennett J ordered that the defendant return the claimant's travel document. This was done on 7th June. It is quite clear from the documentation, that the result of the enquiries was known on 4th June, and that, at least by 5th June, the Treasury Solicitors and the Immigration Service were aware that the outstanding matters had been concluded, and by 5th June were indicating that the passport would be returned by first class post. Nevertheless, this claimant made an application to the High Court for the document's return and the order was made on 6th June. At that stage the document had not been returned. It was returned on 7th June.

The decision letter (page 12), dated 2nd April, indicated that the suspension of the claimant's leave and retention of the travel document was effected by the service of a form IS81. This was a power available under paragraph 2A of Schedule 2 to the Act for the purposes of establishing whether there has been any change in circumstances in the person's case since leave was given, such that leave should be cancelled. Detention of the passport was under paragraph 4(4)(b) of Schedule 2 to the 1971 Act as amended, which gives the officer power to examine and obtain documentation for any purpose, until the person is given leave to enter the United Kingdom, or it is decided that he does not require leave to enter.

In the original submissions, the claimant contended that the defendant misdirected himself in law in that he misconstrued the provisions of paragraph 2A of Schedule 2 to the 1971 Act. This provision, it is submitted, does not apply to persons with indefinite leave to remain such as the claimant. The claimant relies on the provision of the Immigration (Leave to Enter and Remain) Order 2001 as a person not requiring a visa or subject to leave to enter, as long as he has returned to the United Kingdom within two years of his departure. The ILR remains in force. The defendant, it is said, has failed to address his mind to the relevant order, which has abolished the need for those with indefinite leave to remain to obtain leave to enter.

Reliance by the defendant on paragraph 7 of Schedule 2 to the Act should not be read in isolation. Paragraph 7 of Schedule 2 does not address the issue arising from the service of IS96, which proscribes the person's ability to work and imposes other conditions -- this is not appropriate with a person with indefinite leave to remain. To allow a suspension to be used in this manner, it is argued, is open to abuse and is to create, in effect, a new class of returning resident, curbing the right of free movement consistent with his status as a settled person in the United Kingdom.

There were other grounds in the original submissions, which were argued, but for which leave was not given. They are, in summary, that the Secretary of State failed to take into account relevant factors which thereby rendered the decision unlawful; that there was no power in law to suspend the indefinite leave to remain; that there was a failure to give proper reasons for the decision and that the reasons were improper because of the points of law argued before; and, finally, that the decision was unintelligible.

The defendant submitted in the Acknowledgment of Service and Summary Grounds, dated 1st May, that the Secretary of State was entitled to suspend leave under paragraph 2A of Schedule 2 and also detain the passport. The basis of that was the alleged criminal allegations levelled against the claimant. Once the police enquiries were over, the defendant would review the situation and make a decision as regards to leave and the examination would be concluded. In the Detailed Grounds, it was clarified by the defendant that the police had decided to take no further action. Accordingly the claimant's passport was returned. It is conceded by the defendant that paragraph 2A of Schedule 2 of the 1971 Act refers to "leave to enter" rather than "leave to remain". However, it is pointed out that neither party had previously drawn the court's attention to article 13(5) of the Immigration (Leave to Enter and Remain) Order 2000, which is a complete answer to the claimant's claim. The claimant had leave to remain which remained in force under article 13. He arrived in the UK, whereupon his leave to remain was to be treated as leave to enter, granted to him before his arrival and thus paragraph 2A of the Act applied. The Secretary of State accordingly had power to examine the claimant and to suspend leave to enter pending the conclusion of examination. Paragraph 10A of the Immigration Rules reflects this position and is consistent with paragraph 2A of the Schedule taken together with article 13 of the Order. The Secretary of State's Immigration Directorates' Instructions are also consistent with this position. With regard to the power to suspend, that is clearly set out in paragraph 2A(7). Rule 25A of the Immigration Rules, relied on by the claimant, applied to entry clearance and not to this claimant's case. With regard to the other grounds that are raised by the claimant, the defendant submits that leave was only given on the first matter and that in any event these grounds do not take the matter any further. Adequate reasons were given in the letter of 2nd April. Charges do not need to be laid as a pre-condition for examination, suspension or detention of the travel document. Paragraph 4(4)(b) of Schedule 2 gives clear power for examination and detention of the claimant's travel documents. The claimant was provided with a certified copy of the travel document which would be valid for the purposes of finding work and receiving Job Seekers Allowance and any other aid. No proper evidence has been provided to show any detriment to the claimant.

During the hearing on 1st August, the court sought to ascertain from the claimant's representative what their submissions were in response to the defence reference to article 13(5) of the Order. The response was difficult to fathom. The court then sought to go through the relevant legislation to ascertain what principles were accepted to apply to the claimant and which were not. Contradictory answers were given. The court then sought to summarise what was understood to be the essence of the claimant's case but the court had to adjourn the case for lack of court time. The court ordered a further, more focused and concise skeleton argument from the claimant. Additional to that skeleton argument, as has already been pointed out during the hearing, the claimant himself left lengthy voice mail messages on the judge's clerk's voice mail. They were in the form of legal submissions. The messages were deleted and the detail not communicated to me. As has already been indicated to the claimant, this is not acceptable behaviour. Submissions will be in public and will be made in front of the other parties so that they can have an opportunity to respond to them.

The main grounds, putting together all the documentation now and the submissions made by the claimant, can be summarised as follows. 1) Paragraph 2A of Schedule 2 to the Act does not apply to the claimant by virtue of rule 25A of the Immigration Rules. Paragraph 2 is the relevant section which applies to a British citizen or people with the right of abode and indefinite leave to remain. Rule 25A makes it clear the holder of indefinite leave to remain will not require leave to enter in the United Kingdom. 2) It is common ground that you cannot suspend indefinite leave to remain and leave to enter comes as a part of it. By service of the form IS96, giving temporary admission, the ILR no longer subsisted and there is no power in law to suspend ILR. The ILR and leave to remain and leave to enter are mutually exclusive. Reliance by the defendant on article 13(5) of the Order is of no assistance, because it refers to paragraphs 2 and 2A of the Schedule, which does not give power to suspend ILR but only to cancel. The issuing of the IS96 imposed restrictions which do not apply to people with ILR. Reliance is placed on section 2(3)(d) of the Immigration Act and section 3(1)(a),(b) and (c)(i)(ii)(iii) and section 3(4). 3) The claimant was detained for an improper purpose. Paragraph 2A is not for the purpose of a criminal investigation of this type, but for examination relating to immigration matters and the grant of indefinite leave to remain. Moreover, there was no examination of the claimant. 4) The immigration officer had no power to suspend as this was not a case of leave to enter, but one of indefinite leave to remain. Additionally, the power to suspend can only be used once an examination has begun and not before. Given that there was no examination of the claimant before or after the police enquiries, suspension was unlawful. The return of the passport was done, it was submitted, under a court order and in discharge of duty. 5) Even if such a power existed, it was not appropriate to use the power to suspend. It should only be used for cases such as terrorist cases or murder, not for a claimant who has not been charged and who is innocent until proven guilty. 6) The decision letter of 7th April is unintelligible as it fails to state the type of leave which was being suspended, the paragraph of Schedule 2 under which the defendant relied. 7) Additionally, it has been submitted that continuing leave is not the same as indefinite leave and 8) it is repeated again that conditions cannot be imposed on somebody who has indefinite leave to remain.

Paragraph 3.4 of MacDonald's Immigration Law and Practice helpfully sets out a number of propositions, the first one being that no-one may enter the United Kingdom without leave. A number of exceptions are set out in sections 2 and 3 of the Immigration Act and other legislation and this is summarised in paragraph 3.4. It has to be said that this claimant falls under none of the relevant categories set out in that list. It follows from that that he needs leave to enter. He does not, however, need a visa, having indefinite leave to remain and having not exceeded two years away from this country. That is set out in paragraph 3.10 of McDonald's, referring to the appropriate legislation. He therefore does not need entry clearance (paragraph 24). Paragraph 25A of the Immigration Rules and article 3 of the 2000 Order referred to earlier, do not apply to the claimant's case therefore. One only needs to look at the heading under which paragraph 25A falls and it is reads "Entry Clearance". One only needs to look under the heading under which article 3 of the order falls and it refers to "entry clearance". Section 2 of the Immigration Act 1971 relates to the right of an abode. The claimant does not qualify under this section. Reliance on this section is misplaced therefore.

Article 13 of the 2000 Order comes under the heading of "Leave which does not lapse on travel outside common travel area". This applies to the claimant because he has indefinite leave. Subsection (1) reads:

Paragraph 2A to schedule 2 of the Act is headed "Examination of persons who arrive with continuing leave":

Subsection (3): the immigration officer can examine for the purpose of determining whether it would be conducive to the public good for that leave to be cancelled. Subsection (7) gives the officer power by notice to suspend the leave to enter until the examination is completed. Subsection (8): the officer may on completion of examination cancel the leave to enter. Section 4(4) gives the immigration officer the power to examine documents produced pursuant to subparagraph (b).

All passengers arriving at a port of entry in the UK are required to submit to examination by immigration officers, as can be seen in MacDonald's at paragraph 3.31. Immigration officers have the power under Schedule 2(2) and 2A, as I have already indicated, to examine them. As pointed out in MacDonald's, the examination might be cursory or detailed. It may be cursory in the sense of merely looking at the passport or the travel document or it can be longer, involving further detailed examination of documents and further enquiries being made. It follows from this that examination begins at the time when the travel document or passport is considered. Paragraph 3.37 of MacDonald's makes it clear that the immigration officer may want to ask further questions or obtain further information before deciding whether or not to admit the passenger and can require that they submit further examination, and can also examine documents and suspend documents. It also goes on to indicate their powers of detention under this part of the schedule.

It follows from the foregoing, firstly, that "indefinite leave to remain" under article 13(5) in the circumstances in which we find ourselves, is to be read as "leave to enter". Secondly, in the light of the information in possession of the immigration officer, namely allegations of theft, deception and arson, he was entitled to consider whether there had been a change of circumstances since leave was granted in order to decide whether or not if should be cancelled. Thirdly, the examination began at the time of the consideration of the travel document. Fourthly, the examination was not completed and awaited the outcome of the police enquiries. Fifthly, there was, as a result, a power to suspend because the examination had begun. Sixthly, the power was exercised in the light of the criminal allegations. There is nothing in the rules or guidance and no case has been drawn to this court's attention to show that suspension can only be where there are allegations of terrorism or murder and that there has to be a conviction or at least a charge. Temporary admission was given and the claimant was provided with a certified copy of his travel document, thus prima facie causing no prejudice to him. The enquiries were completed once the police reported back and the claimant's document was returned. The decision letter of which complaint is made clearly refers back to paragraph 2A of Schedule 2, which itself refers to people who arrive with continuing leave and refers to leave to enter. It is clear therefore from the decision letter, what leave was referred to and it is far from being unintelligible.

It follows from the above that I do not find that the defendant acted unlawfully, nor do I find that any decision taken was outside the generous ambit of the Secretary of State's discretion such as to make the decisions perverse, unfair or irrational. It follows from this that this application for judicial review is refused.

MR WHALE: Thank you my Lady. I am very grateful. Can I just see if there is any matters arising? (pause)

Yes, my Lady, there is an application for costs in relation to this matter. There is no statement. If you are minded --

MRS JUSTICE DOBBS: Have you done a schedule?

MR WHALE: There is no schedule, I am afraid, my Lady. If you are minded to make such an order --

MRS JUSTICE DOBBS: Why is there not a schedule? (pause)

MR WHALE: My lady, discretion being the better part of valour, we are not going to pursue the application.

MR EMEZIE: My Lady, I am instructed to apply for permission to appeal to the Court of Appeal. The grounds of the application are that there was an error of law on your part when you stated that it follows from the foregoing that ILR is to be read as leave to enter. That is an error of law in that it is very inconsistent with the provision of paragraph 25A. Further, I wish to apply for permission to appeal to the Court of Appeal on the grounds that your interpretation of Schedule 2A, section 2 does not accord with the interpretation we have in the statute and I want to go back to the reasons given by the honourable Stanley Burnton J granting permission. He took the view that paragraph 2A does not apply.

MRS JUSTICE DOBBS: He did not say that, he just merely said it was arguable. He gave leave and said it was arguable and, as we know, his attention was not drawn to section 13(5)(a) of the Order.

MR EMEZIE: Yes, my Lady and, notwithstanding your judgment today, I still think it is arguable.

MRS JUSTICE DOBBS: Well, your personal view is neither here nor there and it is not one that you should express in court, as you should know.

MR EMEZIE: I apologise to my Lady. It is my submission that it is still arguable that it does not apply. As you rightly pointed out, this matter has never been addressed by any court in this land, hence no authorities. It is a novel point. It is a matter of general public importance. What it means is that, when deported to the United Kingdom on arrival at the airport, they can be stopped, have their leave to enter suspended on a mere allegation of suspicion. It can happen to anyone. If this judgment is allowed to remain unchallenged, it would set a very dangerous precedent and I think that we need the Court of Appeal --

MRS JUSTICE DOBBS: I have told you that your personal view should not be expressed in court.

MR EMEZIE: My Lady, I apologise for that, but the seriousness of the issue leads me to argue that in this case permission to appeal to the Court of Appeal. Given the complexity of this matter, the number of different statutes we have cited, the provision of the Act, I think it is reasonable and fair to the claimant that he is allowed to take his case, given the distress and discomfort he suffered in the process. He was not allowed to work for a long period of time and the real reason why permission to appeal should be granted is the fact that this is of general public importance and it might end up affecting a lot of people who are leaving and coming to the UK, people with indefinite leave to remain, so that everyone is clear as to what the law is.

My Lady, those are my grounds for applying for permission to appeal to the Court of Appeal.

MRS JUSTICE DOBBS: Mr Whale?

MR WHALE: Yes, my Lady. The application is opposed. I would invite the court to recall that the British travel document having been returned more than six weeks ago, the suspension having been lifted, the matter before you is really academic. If something can be more than really academic at the Court of Appeal, then it would be.

The second point is that of course it is not good enough for the claimant to get permission that my learned friend thinks or submits that the principal point is arguable. There has to be a real prospect of success and in my submission there is not. Perhaps the reason why this submitted novel point has never previously arisen is because, once one has regard to article 13.5, the answer is obvious. The claimant had the good fortune that article 13.5 was not drawn to the judge's attention and that is why we are here. If it had been, in my submission, we would never have been here. It is not a point that raises a compelling reason for the hearing of the appeal and it does not set a dangerous precedent. You merely have made it clear, or abundantly clear, that which is already clear and so permission to appeal ought not to be granted.

MRS JUSTICE DOBBS: Yes thank you very much.

Permission to appeal is sought in this case, essentially on the grounds that there have been at least two errors of law by this tribunal; that the case raises important issues of law; and that in fairness, given the distress that was suffered by the claimant, leave to appeal ought to be given because the grounds are arguable.

As is well-known, the test is whether there is a realistic prospect of success. Leave to appeal is refused on the ground that there is no realistic prospect of success and there is no other compelling reason to grant leave. If the claimant wishes to pursue the matter, he can pursue it elsewhere.

Yes. Thank you very much.