R v. Secretary of State for the Home Department, Ex parte Okello

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	11 May 1993
Citation / Document Symbol	[1993] Imm AR 531
Cite as	R v. Secretary of State for the Home Department, Ex parte Okello, [1993] Imm AR 531, United Kingdom: High Court (England and Wales), 11 May 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b68a28.html [accessed 30 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte OKELLO

Queen's Bench Division

[1993] Imm AR 531

Hearing Date: 11 May 1993

11 May 1993

Index Terms:

Student -- admission to United Kingdom as visitor -- visa national -- application for variation of leave as a student refused -- whether "should" in the relevant rule was mandatory -- whether the rule was ultra vires the Act. Immigration Act 1971 s 3: HC 251 para 111.

Held:

The applicant seeking leave to move for judicial review was a visa national. He had been admitted to the United Kingdom as a visitor. He applied for variation of leave as a student: that was refused and, under the provisions of paragraph 111 of HC 251, the refusal was mandatory.

Counsel argued that the relevant rule was ultra vires the Act: he also sought to maintain that "should", in the relevant rule, was not mandatory.

Held

1. Paragraph 111 of HC 251 was not ultra vires the 1971 Act.

2. Reading the rules as a whole, it was clear that "should" was mandatory in meaning: "may" was used where there was a broad discretion.

Cases referred to in the Judgment:

Kruse v Johnson [1898] 2 QBD 91: [1895-9] All ER 105.

R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385. R v Immigration Appeal Tribunal ex parte Mohammed Rahman [1987] Imm AR 313. R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department (Mumin) [1992] Imm AR 554.

Counsel:

S Hussain for the applicant; I Ashford-Thom for the respondent

PANEL: Pill J

Judgment One:

PILL J: Mr Paul Okello seeks to quash a decision of the Secretary of State for the Home Department, whereby he refused to grant the applicant a student visa. The decision was made on 5 October 1992, and Mr Okello seeks leave to apply for judicial review. This is a renewed application -- on paper the application was refused.

I need not refer to the facts in any detail. The applicant is the son of a doctor resident in this country, and he seeks to pursue his studies in this country. The first point taken by Mr Hussain, on behalf of the applicant, is that the rule upon which the Secretary of State relies, rule 111 of HC 251, is ultra vires the Immigration Act 1971. The second point is that the Secretary of State has misconstrued the word "should", which appears in that rule, by applying it as a mandatory provision.

I have been referred to the case of R v Immigration Appeal Tribunal ex parte Secretary of State, (unreported, save the Crown Office Digest transcript, 1 July 1992.) In my judgment, the rule is not ultra vires the statute. I have regard to the power to make rules, contained in section 3 of the Act and, in my judgment, it is not arguable that the rule was ultra vires. I have had regard to the provisions of subsections (3) and (4) of section 3, and to the submissions of Mr Hussain, that the principle in Kruse v Johnson should apply, or shall apply. The submission is that the rule is manifestly unjust and ultra vires on that ground. I cannot accept that submission.

As to the meaning of "should", it was, in the case to which I have referred, common ground that the word "should" in paragraph 111 is mandatory. Mr Hussain fairly makes the point, first, that this issue was not argued before the Divisional Court, presided over by Watkins LJ in that case; and secondly, that the point was, in any event, obiter. I see the force in that, though I do also have regard to the fact that experienced counsel were involved in the case, including an amicus, and that the court itself, on a matter of public importance such as this, is hardly likely to have accepted any view which they believed to be wrong.

However, I have come to the same conclusion. In my judgment it is not arguable that the word "should" has other than a mandatory effect in rule 111.

I have heard submissions of Mr Ashford-Thom on behalf of the Secretary of State. The rules are drafted with the style of the administrator rather than the legislator. Mr Ashford-Thom has referred me to the case of R v Immigration Appeal Tribunal ex parte Rahman [1987] Imm AR 313, the judgment of Parker LJ, at 318 and 320, as to the manner in which the rules should be interpreted; and also the decision of Simon Brown J (as he then was) in Manshoora Begum [1986] Imm AR 385 at 391 and 392.

The word "should" appears several times in the relevant part of the rules under the heading "Student". It is accepted that the word "shall" appears in the rules, but it is only in the interpretation section of the rules, where greater formality is to be expected, that the word "shall" appears. I have no doubt that the word "should" in rule 111, and those which surround it, should be read in the mandatory form.

The word "may" also appears in the rules as indicating where a broad discretion exists, and the word "should" appears in certain rules where it is in an applicant's favour that it should be construed in a mandatory form.

The rule, in my judgment, is neither repugnant to the statute nor manifestly unjust; nor should the word "should" be construed as if it gave a broad discretion as does the word "may".

Accordingly, I do not consider that the applicant has an arguable case and this application must be refused.

DISPOSITION:

Application refused

SOLICITORS:

Kibedi & Co, London SE13; Treasury Solicitor