R v. Immigration Appeals Adjudicator, Ex parte Perween Khan

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	23 June 1972
Citation / Document Symbol	[1972] 3 All ER 297, [1972] 1 WLR 1058, 136 JP 770
Cite as	R v. Immigration Appeals Adjudicator, Ex parte Perween Khan, [1972] 3 All ER 297, [1972] 1 WLR 1058, 136 JP 770, United Kingdom: High Court (England and Wales), 23 June 1972, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b62023.html [accessed 30 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

R v Immigration Appeals Adjudicator, ex parte Perween Khan

QUEEN'S BENCH DIVISION

[1972] 3 All ER 297, [1972] 1 WLR 1058, 136 JP 770

Hearing Date: 23 JUNE 1972

23 JUNE 1972

Index Terms:

Commonwealth immigrant - Admission - Refusal of admission - Attendance on course of study - Immigrant showing genuine intention to attend course - Immigration officer concluding that primary purpose of entry not attendance on course but settlement in United Kingdom - Whether genuine intention of attending course precluding officer from refusing admission - Commonwealth Immigrants Act 1962, s 2 (3) (b).

Held:

The applicant, a Commonwealth citizen, obtained an entry permit in Guyana to come to the United Kingdom to take a hairdressing course. On her arrival at Gatwick Airport, the immigration officer, following para 19 of the Home Office Instructions to Immigration Officers a, formed the opinion that the course was not her primary purpose in coming to the country, that she did not have the intention of returning home after completion of the course and that she was not therefore entitled to admission by virtue of s 2 (3) (b) b of the Commonwealth Immigrants Act 1962. On an application for orders of certiorari and mandamus the applicant contended that since she genuinely intended to take the course the immigration officer had no right to refuse entry.

a Cmnd 4298

b Section 2 (3), so far as material, is set out at p 229 b, post

Held (Bridge J dubitante) - In order to qualify for admission under s 2 (3) (b) of the 1962 Act the immigrant's primary purpose in entering had to be attendance on a course of study. It did not follow that, because an immigrant had a genuine intention of undergoing the course, anything which might be in the immigrant's mind with regard to his futture conduct after the expiration of the course was irrelevant; on the contrary it was a factor which had to be taken into account in determining the purpose or purposes of his entry. The immigration officer was therefore entitled to come to the conclusion of fact that the applicant's primary purpose was not attendance at the proposed course but settlement. Accordingly the application would be refused (see p 299 j to p 300 a d and j to p 301 b and p 302 c, post).

Per Curiam.The fact that an immigrant has in mind the possibility, amongst other things, of being allowed to stay in the United Kingdom should not affect his right of entry provided that the course of instruction is the primary purpose of entry (see p 300 f and g, p 301 b h and j and p 302 c, post).

Notes:

For the rules governing the admission of Commonwealth citizens to the United Kingdom, see Supplement to 5 Halsbury's Laws (3rd Edn), para 1513, and for cases on the subject, see Digest (Cont Vol C) 18-20, 157ka-157y.

For the Commonwealth Immigrants Act 1962, s 2, see 4 Halsbury's Statutes (3rd Edn) 27.

Cases referred to in the Judgment:

R v The Chief Immigration Officer, ex parte Bostan Khan (12th March 1969) unreported.

Cases cited in the Judgment:

R v Lympne Airport Chief Immigration Officer, ex parte Amrik Singh [1968] 3 All ER 163, [1969] 1 QB 333 DC.

Introduction:

Application. This was an application (i) for an order of certiorari by Perween Khan to bring up and quash a decision refusing her admission to the United Kingdom made by the chief immigration officer at Gatwick on 8th March 1972, (ii) a decision of an immigration appeals adjudicator made on 10th March 1972, and (iii) a decision of the Immigration Appeal Tribunal made on 4th May 1972 upholding the decision of 8th March, and (ii) for an order of mandamus directing the immigration officer and the respondent, the Secretary of State for the Home Department, to reverse, modify or otherwise cancel the decision and to admit the applicant to the United Kingdom either unconditionally or subject to conditions. The facts are set out in the judgment of Lord Widgery CJ.

Counsel:

E Cotran for the applicant. Gordon Slynn for the respondent. The immigration officer, the appeals adjudicator and the appeal tribunal did not appear and were not represented.

PANEL: LORD WIDGERY CJ, WILLS AND BRIDGE JJ

Judgment One:

LORD WIDGERY CJ. In these proceedings counsel for the applicant, Perween Khan, moves for an order of certiorari to bring up and quash three decisions respectively made under the Commonwealth immigration legislation n1, first a decision of the chief immigration officer at Gatwick on 8th March 1972 refusing the applicant admission to the country; secondly the decision of an immigration appeals adjudicator on 10th March, he having had the matter referred to him by way of appeal; and thirdly the decision of the Immigration Appeal Tribunal made on 4th May, that being the ultimate tribunal in the chain of appeals set up under the Commonwealth immigration legislation. Counsel for the applicant first asks for an order of mandamus to those bodies to hear and determine afresh.

n1 See the Immigration Appeals Act 1969

Briefly what happened was this. On 8th March 1972 the applicant arrived at Gatwick. She had come from Guyana, and she was in possession of an entry certificate issued in Guyana which authorised her entry for the purpose of attending a course of instruction in London at the London School of Beauty Culture; the subject of the course was ladies' hairdressing. The entry certificate had been obtained by the applicant in Guyana, and the evidence as to precisely what passed between her, her mother and the responsible officer in

Guyana is not altogether clear, but it must be accepted for present purposes that amongst other things she stated as a fact that when she had completed the course of hairdressing, she intended to come back to Guyana and there carry on the trade which she had learned.

The entry certificate officer in his evidence says that he had some doubts whether this intention was genuine, but nevertheless was unable to take a different view against the protestations of the applicant and her mother, so she got the certificate and she duly arrived at Gatwick.

The matter was re-examined at Gatwick by the chief immigration officer, and he took the view that the applicant did not have the intention of returning to Guyana after the completion of her course, and from that he progressed to the conclusion that she obtained the entry certificate by virtue of a false representation. He therefore refused her entry, and from that refusal she appealed.

It is not necessary to dwell at all on the proceedings before the adjudicator. When the matter came to the appeal tribuanl, the appeal tribunal upheld the decision of the chief immigration officer, and the adjudicator, on this point, and accordingly her entry certificate was declared to be ineffectual, and counsel for the applicant does not seek to pursue in this court any considerations arising out of that part of the case. We are concerned only with a secondary argument which was put before the appeal tribunal, and which I think is clearly open before us. The secondary argument goes in this way: it is submitted that even if the entry certificate was invalid, and even if in consequence the applicant had no right to enter by virtue of that certificate, yet it is said that she had a right to enter, a right which could not be gainsaid by the immigration officer, under s 2 (3) (b) of the Commonwealth Immigrants Act 1962. Section 2 of the 1962 Act, which was amended by s 2 of the Commonwealth Immigrants Act 1968, sets out a new code regulating the circumstances in which permission shall or shall not be granted to a Commonwealth immigrant, and having provided earlier in the section that such permission may be granted subject to conditions, or refused, it goes on to specify in sub-s (3) certain situations in which permission may not be refused. Omitting the irrelevant words, sub-s (3) provides as follows:

'Without prejudice to subsections (2) and (2A) of this section, the power to refuse admission under this section shall not be exercised, except as provided by subsections (4) and (5), in the case of a Commonwealth citizen who satisfies an immigration officer either [then I omit (a) and go stright to (b)] that he wishes to enter the United Kingdom for the purpose of attending a course of study at any university, college, school or other institution in the United Kingdom, being a course which will occupy the whole or a substantial part of his time...'

The argument for the applicant in this court is that those words given their ordinary meaning fit her situation. It was never doubted that she genuinely intended to take this course. It is said that it was a course of study within the meaning of sub-s (3) (b), and it was one which would occupy the whole or a substantial part of her time; hence it was argued that within the four walls of that subsection there was a right in the applicant to enter, a right which cannot be refused by the immigration officer.

The tribunal, in dealing with this argument, followed as a guide to construction of this section, para 19 of the Home Office Instructions to Immigration Officers n2. This paragraph, which is both a construction of the section and guidance for the immigration officers, reads in this way:

n2 Cmnd 4298

'A Commonwealth citizen seeking admission as a student should normally be expected to produce evidence of acceptance for a course of study, beginning shortly, that meets the requirements of the Act (a correspondence course does not meet those requirements) and of ability to meet the cost of the course and of his own maintenance. Due weight will be given to any evidence that a student produces of qualifications he has already obtained, or of sponsorship by his home government or an educational authority. If there are grounds for doubting that his intentions are genuine and realistic -- for example where there is an obvious lack of correspondence between the student's previous attainments and the nature of the course he proposes to follow -- admission should be refused. [Now comes the important part:] In particular, the Immigration Officer should be on his guard against attempts to use enrolment for a course of study as a means of obtaining admission without a voucher. Attendance at the course must be the student's primary purpose in coming to the United Kingdom and he will be expected to leave when his studies are completed; if his primary intention is to work and settle, he must qualify for admission on other grounds.'

Counsel in his submission for the applicant today complains that that interpretation of the Act in para 19 of the instructions to immigration officers is incorrect; alternatively that it has been wrongly applied in the circumstances of the particular case. He contends quite boldly that if the intended immigrant satisfies the immigration officer that she wishes to attend a course of the kind described in s 2 (3) (b), it is wholly irrelevant what her intentions may be in regard to her movements when the course is concluded. He says that if it is once shown that a genuine intention to undergo one of the authorised courses of instruction is shown, that is an end of the matter, and anything which may be in the immigrant's mind in regard to her conduct at the end of the course is completely irrelevant.

For my part I am quite unable to accept that approach to the construction of the section. In my judgment that which is in the immigrant's mind in regard to conduct after the expiration of the course must be a factor in the determination of the purpose or purposes with which she enters the country, and accordingly an argument which completely eliminates any consideration of that aspect of the matter seems to me to be wrong. I am confident that it was not the intention of Parliament that this should be the interpretation of the subsection, because if it were, the way would at once be open for enthusiastic teachers of the English language or some other elementary subject to set up short courses of instruction, full-time courses during their duration, for immigrants who choose to take them, and one would find, I suspect, in a very short time a large number of these short although perfectly bona fide courses of instruction which were really used as no more than a key to obtain entry to the country without other authority. For those reasons I would reject the submission made by counsel for the applicant in the form in which I have described it.

On the other hand, counsel for the respondent adopts as correct the interpretation of the Act given in para 19. He says that it shows the broad intention of Parliament in the section, that it is a good working rule for immigration officers, and that the tribunal in following it did not in any way misdirect themselves. In my judgment para 19 is what counsel forthe respondent claims for it. It is not an exhaustive and authoritative statement of the meaning of the subsection, but it is a very good working rule, and I think that its language produces as nearly as a simple statement of the kind can, the intention which Parliament must have had in enacting this particular piece of legislation.

I think that the only risk disclosed in argument of too close an adherence to para 19 is the risk that immigration officers may be tempted to feel that no intending student can come in under s 2 (3) (b) unless he positively avers that he is going to go home at the end of the relevant course. Lord Parker CJ in an earlier case, R v The Chief Immigration Officer, ex parte Bostan Khan n3 did say of this particuar subsection:

n3 (12th March 1969) unreported

'It seems to me perfectly clear that that provision is designed to meet the case of a student coming to this country to take a partivular course of study and then go away again.'

I respectfully agree that that is the main need which is to be met by s 2 (3) (b), but I do not think Lord Parker CJ meant, and I certainly myself would not regard the section as meaning, that a would-be immigrant under this provision must show a positive intention to go home again. The fact that the immigrant has in mind the possibility, amongst other things, of being allowed to stay in this country should not, in my judgment, affect his or her right of entry, provided that the course of instruction is the primary purpose with which the entry into this country is made. I think that there should be no real difficulty for immigration officers to distinguish between these two cases, the case where the course of instruction, although genuinely intended, is really no more than a convenient key to obtain entry into the country, and the case where the course of instruction is the primary or overriding purpose for which the immigrant seeks to obtain entry. I hesitate to suggest yet another form of test, or yet another construction of the Act, but in many cases it seems to me that much will turn on whether the immigrant attaches so much importance to the course that he or she will come to the course anyway, regardless of whether she can stay in the country afterwards, or not, or whether the course played such a relatively minor part in his or her calculations that she would not dream of comiing for the course alone, but merely regards it as a stepping stepping stone to other and more permanent sojourn here.

For these reasons I regard the adherence of the tribunal to para 19 as a perfectly satisfactory and proper approach to the problem, and directing themselves in that way they have reached a conclusion as a matter of fact that the primary purpose of the appellant in coming to this country was not attendance at the proposed course, but settlement. That seems to me to be a determination on the right principle, and one which on the evidence they were entitled to reach if they saw fit. For those reasons I would refuse the application.

Judgment Two:

WILLIS J. I agree.

Judgment Three:

BRIDGE J. I have felt much greater difficulty than has beset Lord Widgery CJ and Willis J in the course of the argument in this case. My difficulty arises in the main from the last sentence in para 19 of the Home Office Instructions to Immigration Officers, which Lord Widgery CJ has read, the sentence which says:

'Attendance at the course must be the student's primary purpose in coming to the United Kingdom and he will be expected to leave when his studies are completed.'

I fully accept that if one is making a comparison between a number of purposes which are to be achieved contemporaneously, the question which is the primary purpose and which is or are secondary, may be a perfectly satisfactory comparison to make in the context of the legislation in question.But I am far from satisfied that the test, which is the primary and which is the secondary purpose, is a satisfactory one, or is not at least open to misinterpretation, if it is applied to make a comparison between purposes which are to be achieved in successive periods of time.

It seems to me that when an immigrant seeks entry for a temporary purpose, whether that contemplated by s 2 (3) (b) of the Commonwealth Immigrants Act 1962, with which we are immediately concerned, or by s 2 (3) (c) , which deals with temporary visits, then the only question which really matters as regards any intention which the would-be immigrant may have in mind with respect to the period following any temporary permit which he may be granted, is the question whether or not he has in mind to effect that intention lawfully.

I would seek to illustrate what I mean more precisely. If a student seeks entry for the period of a course which he is going to take, then so long as any intention which he may have of remaining in this country after the course of study is complete is conditional in his mind on his being granted a further permit to stay, it seems to me that such an intention is really quite irrelevant for any purposes which have to be considered under s 2 (3) (b).

To take the example which was canvassed in the course of argument, suppose that a medical student comes to this country to seek to qualify, and has in mind the hope and belief and the firm intention when he has qualified to remain and practice in this country provided he can obtain permission to do so; how can that consideration, if I may put the point in a form of a rhetorical question, detract from the conclusion that the purpose of his entry under what will necessarily be a temporary permit is his proposed course of study?

On the other hand, of course, if the purpose of a student in taking a course of study, although it be quite real and genuine in the sense that he fully intends to take that course, has superimposed on it a further purpose in the shape of an intention to remain in this country after he has concluded his studies in any event, that is to say whether he gets a further permit or not, then it is obvious to my mind that one can properly conclude that his intention to undergo a course of study is a mere device to gain entry for the ulterior purpose of staying in circumstances in which he knows he is unlikely to be permitted to stay.

That, as it seems to me, is the essential distinction which ought to be present in the mind of an immigration officer or an appeal tribunal concerned with a question under this provision, and it is because I have felt doubt whether the contrast between a primary and a secondary purpose is apt to cover the distinction I have sought to make that the case has troubled me.

I do observe that the sentence I quoted from para 19 is immediately preceded by the sentence which reads:

'In particular, the Immigration Officer should be on his guard against attempts to abuse enrolment for a course of study as a means of obtaining admission without a voucher.'

So long as that is always borne in mind, it may be that that makes clear what is meant by a 'primary' purpose in the succeeding sentence.

It is because of my doubts as to the aptness of the primary purpose test that I felt doubt whether the tribunal here applied the right test, but bearing in mind that at the end of the day it is for the applicant to show that the tribunal misdirected themselves, and not for the tribunal to satisfy the court that they had applied the right test, I am not prepared to press my doubts to the point of dissent, and I therefore agree in the order proposed by Lord Widgery CJ and Willis J that the application be refused.

DISPOSITION:

Application refused.

SOLICITORS:

Daniel P Debidin (for the applicant); The Treasury Solicitor.