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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	1 March 1985
Citation / Document Symbol	[1985] Imm AR 28
Cite as	R v. Secretary of State for the Home Department, Ex parte Bhambra, [1985] Imm AR 28, United Kingdom: High Court (England and Wales), 1 March 1985, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63a20.html [accessed 30 May 2023]
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R v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex Parte BHAMBRA

Queen's Bench Division

[1985] Imm AR 28

Hearing Date: 1 March 1985

1 March 1985

Index Terms:

Student -- arrived without entry clearance -- whether immigration officer was right to refuse admission when not satisfied applicant had ability to follow intended course -- whether if uncertain, discretion should have been exercised in applicant's favour -- Immigration Rules HC 169 paragraphs 21, 22, 24.

Practice and Procedure: where affidavits submitted in support of applications for judicial review refer to representations made to the Secretary of State on applicant's behalf, those representations and any reply by the Secretary of State should be exhibited to the affidavits.

Held:

The applicant arrived without entry clearance in the United Kingdom and sought entry as a student to pursue a TEC Diploma Course in electronic and electrical engineering. The applicant's academic record was not impressive; in particular he had a poor knowledge of English and had studied no scientific subject since his matriculation in India where on the basis of his lack of academic achievement he had been unsuccessful in an application for a place in an Industrial Training College.

The immigration officer was not satisfied that the applicant had the ability to pursue his intended course. She was not satisfied likewise on the facts before her that the applicant could maintain himself without working or recourse to public funds.

Held 1): On the facts before her the immigration officer was entitled to come to the conclusions she did both as to the applicant's ability and his means of support.

2) The discretion in paragraph 24 of HC 169 does not extend to the admission of a would-be student who, it has been concluded, lacks the necessary ability to pursue a particular course. The genuineness of the applicant's intention was not in doubt, but his intention in the circumstances could not be realistic.

Counsel:

M Hussain for the applicant; G Pulman for the respondent

PANEL: Mann J

Judgment One:

MANN J: There is before the court an application for judicial review. Leave to move was given by McNeill J on 18 April 1984. The decision which it is sought to impugn is a decision of an immigration officer at Heathrow Airport dated 23 September 1983 by which she refused to admit the applicant to the United Kingdom as a student.

There is a preliminary matter to which I should advert. The affidavit of the applicant which was before the learned judge at the stage of the application for leave to move, refers in paragraph 9 to representations made by his Member of Parliament to the Secretary of State for the Home Department and to the lack of success that those representations had achieved.

It has on two occasions been said in this court that on applications for leave to move, candour must be displayed and in particular representations -- and most especially the response of the Secretary of State to those representations -- should be placed by the applicant before the court. It is true that, so far as one can judge, in the earlier cases the affidavit was totally silent upon the subject of representations. The affidavit in this case is not silent. However, in my judgment the principle is the same. Where there have been representations to the Secretary of State and where the Secretary of State has responded to those representations, they should be exhibited to the applicant's affidavit. It is not, in my view, sufficient simply to refer to them without exhibition.

I turn to the particular circumstances. The applicant arrived in this country on 18 September 1983. The immigration officer's decision is dated 23 September 1983. The immigration officer has sworn an affidavit in these proceedings. The affidavit concludes in this way: "I was not satisfied the applicant had the ability to follow the proposed course and his ability to maintain himself without working or recourse to public funds was in serious doubt. I was therefore not satisfied the applicant qualified for admission as a student and, with the authority of the Chief Immigration Officer I refused the applicant leave to enter pursuant to paragraphs 21 and 22 of the Statement of Changes in Immigration Rules HC 169."

The proposed course referred to was a TEC Diploma Course in electronic and electrical engineering at the Bradford & Ilkley Community College. The applicant had been offered a conditional place for such a course to commence on 19 September 1983.

Mr Hussain argues that the immigration officer's decision can be faulted on two grounds. First, he says, she should have concluded that the applicant was qualified under the appropriate rules. Alternatively, he said, she ought to have exercised her discretion under another of the rules.

The applicant does not have an entry clearance and, accordingly, his case falls within Rule 24 which, so far as is material, reads: "A passenger who can satisfy the immigration officer that he fulfils the requirements of paragraphs 21-23 may be admitted for an appropriate period depending on the length of the course of study and on his means, with a condition restricting his freedom to take employment".

That turns one to look at the requirement of paragraphs 21 to 23. In paragraph 21 one finds requirements as follows: ". . . that he has been accepted for a course of study at a university, a polytechnic or further education establishment, an independent school or any bona fide private education institution; that the course will occupy the whole or a substantial part of his time; and that he can, without working and without recourse to public funds, meet the cost of the course and of his own maintenance and accommodation and that of any dependants during the coruse."

Paragraph 22 requires that: "the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it. In assessing the case the officer should consider such points as whether the applicant's qualifications are adequate for the course he proposes to follow". Paragraph 23 is not material.

The first point made by Mr Hussain is that the immigration officer should have been satisfied that the conditions to which I have referred are satisfied in the case of this applicant. Alternatively, he says, if the totality of those conditions are not satisfied, then under the second part of paragraph 24 the immigration officer had a discretion, because the second part of that paragraph says: "A passenger who satisfies the immigration officer that he has genuine and realistic intentions of studying in the United Kingdom and that he intends to leave the country on completion of his studies but cannot satisfy the other requirements of paragraphs 21-23 may be admitted for a short period".

Mr Hussain says that the immigration officer was unable, on the evidence before her, to reach the conclusion that she was not satisfied the applicant had the ability to follow the proposed course. I turn to the applicant's academic background. He matriculated in 1982 in English, Punjabi, Hindi, history, drawing, physics, chemistry and mathematics, and had passed in the second division at the first attempt. He then undertook a one year pre-university course. The examination for that course was taken in April 1983 and he passed in Punjabi but failed in English, political science (Civics) and economics.

He had applied, in June 1983, to a college in India, being the Chandigarh Government College for Industrial Training, but he was unsuccessful in that application as his qualifications were too poor. The proposal that he should follow a course at Bradford was a proposal suggested by his sponsor, who is in fact his maternal uncle.

The immigration officer observes -- in paragraph 9 of her affidavit -- that the applicant: "had not studied any scientific subject since matriculating with low grades in 1982 and his proposed course had been suggested by his maternal uncle who knew very little about his educational background. The applicant's knowledge of the English language was insufficient for the purpose of carrying out the interviews and appeared inadequate to enable him to follow a highly technical course of study despite the proposed daily 30 minute English lessons". There was then an observation that the college had reserved the right to withdraw the offer of a place if he should fail the diagnostic testing period between September and December 1983.

Despite Mr Hussain's argument to the contrary, I am quite satisfied that there is ample material on which the immigration officer could reach the conclusion that she was not satisfied that the applicant had the ability to follow the proposed course. Accordingly, for that reason alone, I am satisfied that the conditions set out in paragraphs 21 and 22 were not satisfied.

There is a further point in that the immigration officer said that she was not satisfied of the applicant's ability to maintain himself, in that she said: "his ability to maintain himself without working or recourse to public funds was in serious doubt". Her conclusion in that regard is assailed because she took a figure of @6,000 per annum as being the total outlay, that being a figure derived from the college, a figure which can be fragmented into components of @1,800 fees and @4,000 for other expenses, of which @2,400 is for accommodation and food. However, says Mr Hussain, it was wrong to take that into account because the applicant was going to live as a member of his maternal uncle's family and accordingly the figure was less than @6,000 by that amount, or by that amount adjusted to take account of some contribution towards the family food. Even taking into account the possibility of that adjustment, the sum remaining is still a substantial figure.

In relation to the sponsor, he is a man who has a house in Bradford which is subject to amortgage costing @80 per month. He has a wife and three dependent children. He told the immigration officer that his income come from various sources: earnings of @434 net from employment; profits of @200 per month from an electrical goods shop; @128 per month from some property.

The immigration officer observed that the sponsor provided no evidence regarding his income or savings, but said he and his wife had @250 in combined savings, although they had bank loan repayments of @108 per month. The only documentary evidence relating to his financial standing was a reference from his bank. The immigration officer has deposed: "When I pointed out to the sponsor his nephew's college fees would be @1,795 per annum and the college had set out the likely costs for a student in their letters, the sponsor said he had not properly read the letters".

It is apparent that the sponsor's income rests upon assertion and not upon demonstration. In the absence of demonstration and having regard to the order of figures which are on any view involved, I think there was adequate material on which the immigration officer could say that the ability of the applicant to maintain himself without recourse to public funds was in serious doubt. On that ground also there is a failure to fall within the conditions set out in paragraphs 21 and 22.

I turn to Mr Hussain's alternative submission, that is to say, that the applicant should have been considered for discretionary admission under the second part of paragraph 24 as being a person who has genuine and realistic intentions to study in the United Kingdom, but cannot satisfy the other requirements of paragraphs 21-23.

The immigration officer did not refer to the second part of paragraph 24, and that omission, it is said, flaws her decision. I cannot follow that submission. There is no question about the genuineness of the applicant's intention to study. The question, of course, is to their reality. His intention was to study this particular course. Premising, as I do, his inability to follow that course for the reasons given by the immigration officer, I do not see how it can be said that his intention was realistic. An intention cannot be a realistic intention if it is an intention to which you are unable to give effect. Accordingly, I regard the failure of the immigration officer to refer in terms to the second part of paragraph 24 as being, in the circumstances of this case -- and I emphasise the circumstances of this case -- of no moment. For those reasons this application is refused.

DISPOSITION:

Application dismissed.

SOLICITORS:

Read, Hind & Co, Bradford; Treasury Solicitor.