Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD CARLILE OF BERRIEW QC
Sitting as a Deputy Judge of the High Court
Between :
The Queen (on the application of Hazret Kose) | Claimant |
- and - | |
Secretary of State for The Home Department | Defendant |
Shivani Jegarajah (instructed by Kinas Solicitors) for the Claimant
Sarah Love (instructed by TheTreasury Solicitor) for the Defendant
Hearing dates: 22 September 2011
Judgment
Lord Carlile of Berriew QC :
This Judgment is on the renewed Application for Permission to apply for Judicial Review of Hazret Kose. Permission on the papers was refused by Geraldine Andrews Q.C., sitting as a Deputy Judge of the High Court, on the 16th August 2011.
The Claimant Mr Kose is a Turkish national. On the 29th December 2010, in Turkey, he obtained entry clearance as a Tier 4 (general) student. He was sponsored by Edwards Language School of London, and intended to study a B2 intermediate English course there. The School issued a Certificate of Acceptance for Studies [CAS]. There had been pre-assessment of him in an interview over a Skype connection, and there had been provided a certificate from a language school in Turkey to the effect that he had completed a B1 English course, which effectively stated that he knew sufficient English to embark on the B2 course. His B2 course was scheduled to run from the 17th January 2011 for 6 months. He had paid £3000 fees for the course.
On the 13th January 2011 he arrived at Manchester Airport by a flight from Istanbul, and sought entry as a student. Shortly after he disembarked from the flight, immigration officials spoke to him. They concluded that he was unable to answer questions regarding his course, and had trouble understanding what was said to him in English. From the airport an immigration officer telephoned the academic manager of Edwards Language School. Following a telephone conversation between the Claimant and the academic manager, a fax was sent to the airport by the School revoking the sponsorship and the CAS. The fax included:
“However, having had the opportunity to interview Mr Kose by telephone today, I am not satisfied that his level of English is high enough to entitle him to enter the UK under the Tier 4 route.”
As a consequence the leave to enter was cancelled by the Immigration Officer.
The Claimant asserts that the decision by the School was provided in circumstances and by a process that was unfair.
The Defendant Secretary of State asserts that a decision not by her, but rather the withdrawal of sponsorship and CAS by the School, created such a change of circumstances since leave was given, that leave should be cancelled, pursuant to Immigration Rules (HC 395) paragraph 321A(1).
The case was considered by the First-Tier Tribunal (Immigration and Asylum Chamber: Immigration Judge Chambers) on the 24th March 2011. The Tribunal expressed misgivings about the circumstances in which the CAS was removed. It was held that the Claimant had made no false representations, and a sympathetic hearing was given to his statements that he was feeling unwell on arrival in the UK, and had to deal with unfamiliar accents. His appeal was allowed to the extent that it was held that he had not made false representations. However, the Judge found that without the CAS certification the Claimant had no right to enter as a student, whatever the reasons for withdrawal given by the language school. The change in circumstances therefore was fatal to his right to enter the UK.
Following that Appeal the Notice of Refusal dated the 13th January 2011 was withdrawn by the Secretary of State, and replaced by a new refusal dated the 19th April 2011 on the basis of the same change of circumstances. Since then the Claimant has remained in the United Kingdom pending the determination of this Claim.
The refusal by Ms Andrews Q.C. of permission on the papers was founded upon the same conclusion as that of the Immigration Judge. She observed that a person in the Claimant’s position’s proper course is to return to Turkey and make a fresh application from abroad for entry clearance.
The Claimant’s Counsel Ms Jegarajah argued that the decision by the Defendant to cancel the leave to enter was vitiated by unfairness, irrationality or was otherwise unlawful; and that the Claimant should be placed in the position he would have been but for the immigration officer’s actions.
The Defendant responds that the immigration officer’s actions were lawful; that the decision to revoke the CAS was that of the School, not that of the Defendant; and that there had been a change of circumstances which had the effect of entirely removing the basis for permission to enter.
The power to examine a person who has arrived in the United Kingdom with leave to enter is given under the Immigration Act 1971 Schedule 2 paragraph 2A for the purpose of establishing:
“whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled.”
The Immigration Rules (HC 395) provide as material at paragraphs 321 and 321A:
“Refusal of leave to enter in relation to a person in possession of an entry clearance
321 A person seeking leave to enter the United Kingdom who holds an entry clearance which was duly issued to him and is still current may be refused leave to enter where the Immigration Officer is satisfied that:
...
(ii) a change of circumstances since it was issued has removed the basis of the holder’s claim to admission ...
321A The following grounds for the cancellation of a person’s leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply:
(1) there has been such a change in the circumstances of that person’s case, since the leave was given, that it should be cancelled;”
As part of her argument the Claimant’s Counsel relied upon the decision of the Court of Appeal in SSHD v Boahen [2010] EWCA Civ 585. There Pitchford LJ said:
“[37]Consideration of cancellation on the ground of change of circumstances required an assessment from the immigration officer of all the circumstances including, for example, whether there remained a continuing legitimate purpose for the visa holder’s visits with which the visa holder could and should be entrusted for the remainder of the period of validity. The purpose of the power of cancellation is to ensure proper immigration control, and the use of a visa by a visa national for a visit whose purpose is unauthorised is, on the face of it, a serious matter.”
One of the examples Pitchford LJ gave as a possible change of circumstances that might justify cancellation [paragraph 37 of the Judgment] was the withdrawal of sponsorship for a course of study. As Counsel for the Defendant submitted, this is consistent with the decision of the Upper Tribunal in OR (Student: ability to follow course) Bangladesh [2011] UKUT 00166 (IAC). There the Upper Tribunal underlined that, for there to have been a change of circumstances, it must be established that there has been an event since the starting point that constitutes a material change.
In the present case the starting point was the granting of sponsorship and a CAS by the Language School. The subsequent event was its withdrawal. That event wholly undermined and removed the foundation for the leave to enter. There was a change of circumstances. However the change arose, it was not from a decision of the Defendant. In my judgement there is no realistic argument to the contrary.
It was further contended on behalf of the Claimant that the withdrawal of the original cancellation of the 13th January 2011 and its replacement on the 19th April 2011 means that the original cancellation is a nullity, and should be replaced by a deemed 6 months leave to enter, pursuant to the Immigration Act 1971 Schedule 2 paragraph 6.
Paragraph 6 provides:
“6(1)Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twenty-four hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twenty-four hours, he shall ... be deemed to have been given leave to enter the United Kingdom for a period of six months subject to a condition prohibiting his taking employment and the immigration officer shall as soon as may be give him written notice of that leave.
...
(3)Where in accordance with this paragraph a person is given notice refusing him leave to enter the United Kingdom, that notice may at any time be cancelled by notice in writing given him by an immigration officer; and where a person is given a notice of cancellation under this sub-paragraph, and the immigration officer does not at the same time give him indefinite or limited leave to enter or require him to submit to further examination, he shall be deemed to have been given leave to enter for a period of six months subject to a condition prohibiting his taking employment and the immigration officer shall as soon as may be give him written notice of that leave.”
The decision challenged in this claim is that of the 19th April 2011, the Notice of Refusal of the 13th January having been explicitly withdrawn by a UKBA letter of the 19th April signed by an Immigration Officer N.P. Taylor. That was the cancellation of the earlier refusal, as envisaged in paragraph 6(3) of the Rules, set out above. In the Notices IS82C and IS96 issued with that letter the Officer gave temporary admission until the 26th April 2011. That amounted to limited leave to enter as envisaged by the same paragraph. Thus the deeming provision does not come into operation.
Further, it was submitted that the Claimant could make a fresh application for entry clearance as a Tier 4 general student whilst within the UK. This is in any event a hypothetical question, as he is not in possession of a current CAS for any study in this country. That notwithstanding, it is important not to forget Immigration Rules (HC 395) paragraph 28:
“28. An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An applicant for an entry clearance who is seeking entry as a visitor must apply to a post designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Subject to paragraph 28A, any other application must be made to the post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living.”
The above paragraph is in my judgement plainly fatal to the submission made. It is mandatory that any new application for Tier 4 general student entry clearance be made from outside the United Kingdom.
It follows from the above that, despite the unfortunate experience of the Claimant on arrival in the UK in January 2011, I find that there are no arguable grounds that the Defendant has acted unlawfully. I therefore refuse permission to apply for Judicial Review.