R v. Secretary of State for the Home Department, Ex parte Samuel Adeshipe
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 18 July 1989 |
| Citation / Document Symbol | [1989] Imm AR 570 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Samuel Adeshipe, [1989] Imm AR 570, United Kingdom: High Court (England and Wales), 18 July 1989, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6180.html [accessed 3 June 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 Secretary of State for the Home Department ex parte Samuel Adeshipe
Queen's Bench Division
[1989] Imm AR 570
Hearing Date: 18 July 1989
18 July 1989
Index Terms:
Leave to enter -- refusal -- student returning during currency of limited leave -- s 3(3)(b) and 'visa exempt' stamps in passport -- whether refusal of leave justified -- whether applicant had legitimate expectation that he would be given leave to enter -- Oloniluyi distinguished -- whether all relevant circumstances considered. Immigration Act 1971 s 3(3)(b): HC 169 paras 21, 58.
Held:
The applicant was a citizen of Nigeria who had been a student in the United Kingdom since 1980. In November 1987 he was granted a further year's leave. Shortly afterwards he went to the United States. He returned in November 1988 during the currency of that leave and sought leave to enter for two years as a student. When he had left in November 1987 his passport had been endorsed with a section 3(3)(b) stamp and a 'visa exempt' stamp. He was refused leave to enter, the immigration officer not being satisfied that he was a genuine student who would leave the United Kingdom at the end of two years. On application for judicial review it was argued, following Oloniluyi that he had had a legitimate expectation that he would be re-admitted: the immigration officer, following the observation of the Master of the Rolls in that case, should not have treated him as a new arrival. For the Secretary of State it was argued that Oloniluyi was distinguishable. There had been no oral assurances given to the present applicant: he had no application for variation of leave outstanding when he left the Unted Kingdom, he had been absent for a long time and there was evidence before the immigration officer to suggest that the applicant was not a bona fide student. Held: 1. There was no evidence to suggest that the applicant had been given any assurances such as to give rise to a legitimate expectation that he would be re-admitted to the United Kingdom: Oloniluyi distinguished. 2. The immigration officer was bound under paragraph 58 of HC 169 to take into consideration all the relevant circumstances. That he had done, including the endorsements in the passport. 3. There were no grounds on which the court should interfere with the decision.Cases referred to in the Judgment:
Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. R v Secretary of State for the Home Department ex parte Balogun [1989] Imm AR 199.Counsel:
P Engelman for the applicant; G Sankey for the respondent PANEL: Kennedy JJudgment One:
KENNEDY J: This applicant seeks judicial review of the decision of the immigration officer at Heathrow dated 17 November 1988, which was in these terms: "You have asked for leave to enter the United Kingdom as a student for two years but I am not satisfied that you are a genuine student who will leave the United Kingdom on completion of your studies." The applicant is a Nigerian who contends that he is a genuine student and he will return to Nigeria on completion of his course of study. More significantly for present purposes, he contends that the decision to which I have referred was unreasonable and unfair because on or about 30 November 1987 he had been granted leave to remain in the United Kingdom until 30 November 1988. When he was refused leave to enter he was seeking to return to the United Kingdom within that 12 month period. In November 1987 his passport had been endorsed in the usual way, with the leave to remain endorsement setting out the conditions as to employment and so forth on which leave was granted, and a further endorsement was added, which reads thus: "This will apply unless superseded, to any subsequent leave the holder may obtain after an absence from the United Kingdom within the period limited as above." It is common ground that the purpose of the second endorsement was to take advantage of the provisions of section 3(3)(b) of the Immigration Act 1971, which in so far as it is material reads as follows: "In the case of a limited leave to enter or remain in the United Kingdom, the limitation on and any conditions attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave." Accordingly, in my judgment, it is clear that the opening word of the second endorsement refers back to the conditions embodied in the first endorsement and means in effect that this package of limitations and conditions will apply. In November 1987 there was also a third endorsement on the passport which again was in a fairly standard form, which read: "The holder is exempt from requiring a visa if returning to the United Kingdom to resume earlier leave before 30 November 1988." Mr Engelman contends that, leave to remain having been granted in November 1987 in the way that I have just outlined, that gave rise to a legitimate expectation on the part of the applicant that within the twelve-month period he would be granted leave to re-enter the United Kingdom without difficulty on the same terms. It is accepted that on 17 November 1988 it was the duty of the immigration officer to consider the application to re-enter within the framework of rule 58, which provides as follows: "A passenger whose stay in the United Kingdom was subject to a time limit and who returns after a temporary absence abroad has no claim to admission as a returning resident. His application to re-enter should be dealt with in the light of all the relevant circumstances. The same time limit and any conditions attached may be reimposed or it may be more appropriate to treat him as a new arrival." However Mr Engelman contends that the immigration officer failed to take into consideration a relevant matter, namely the legitimate expectation to which I have just referred, and had the applicant appreciated in November 1988 that he would be treated as a new arrival he would have applied for entry clearance from the United States. A similar problem confronted the Court of Appeal in the case of Oloniluyi v Secretary of State [1989] Imm AR 135. The applicant in that case was a Nigerian lady who came to the United Kingdom in June 1985 and was given leave to enter as a visitor for six months. She then enrolled as a student and applied to have her leave extended to enable her to complete her course. There was evidence from her school that during 1986 she attended 486 sessions out of a possible 496 which, as the Master of the Rolls pointed out, showed that she was a genuine student and did not enrol purely in order to obtain an extension of her immigration permit. Then in November 1986, having heard nothing of her application for extended leave to remain for nearly a year, she went to the immigration branch of the Home Office at Lunar House, Croydon because she wanted to go hom to Nigeria for Christmas 1986. She was given leave to remain until 31 January 1987. The official told her that if she went home for Christmas she would have no trouble returning to the United Kingdom as long as she was back before 31 January 1987, and her passport was endorsed with endorsements similar to those with which I am concerned in the present case. When Miss Oloniluyi returned to the United Kingdom the immigration officer, as in the present case, was not satisfied that she was a genuine student for reasons which I need not recite in detail; a representation by a Member of Parliament produced a decision letter from the Minister of State which confirmed the immigration officer's decision. It was noted in the Court of Appeal that neither in the decision letter nor in the immigration officer's affidavit was there any reference to the alleged conversations at Lunar House, the section 3 stamp or the visa stamp. The court reminded itself that it could not substitute its view for that of the immigration officer, and then at page 141 the Master of the Rolls continued: "What is to the point is whether the respondent has treated the applicant unfairly by refusing leave to re-enter the United Kingdom after creating a legitimate expectation that she would have no trouble in doing so. What is also to the point is whether the immigration officer and the Secretary of State misdirected themselves in law in failing to take account of this factor and of the fact that, faced with a choice between allowing her to re-enter for the remainder of her original period of leave, ie until 31 January 1987 or indeed any lesser period even as short as one day, and refusing her leave to enter, by adopting the latter option they thereby deprived her of a section 14 right of appeal against the implied refusal of her application of December 1985 which should have been determined long before she left the country for her Christmas holiday in Nigeria." He inclined to the view that an immigration officer applying rule 58 should only treat a returning visitor as a new arrival if that would lead to his being treated more favourably, or if he was returning in a new capacity (a distinction heavily relied upon by Mr Sankey in the present case), or if information was available which would have justified revocation of the earlier leave. In the Oloniluyi case the applicant was returning in the same capacity as that in which she had left, namely as a visitor who had applied for a student's extension, and no information was available to justify revocation of the earlier leave. But the basis of the decision of the Master of the Rolls was that the relevant circumstances were not taken into account, including in particular the outstanding application for an extension of leave and the two stamps which "would clearly indicate to the average visitor that there should be no problem in re-entering this country for the balance of the existing period of leave". Dillon LJ seems to have reached the same conclusions by a different route. He thought that nothing really turned on the stamps on the passport but that the oral assurance given to the applicant at Lunar House raised in her a "legitimate expectation that she would be re-admitted" when she returned to Heathrow, in fact on 5 January 1987. At the start of his judgment Dillon LJ said that everything depended upon the facts, and Staughton LJ agreed with both judgments. Therefore all three members of the court agreed that there was a failure to have regard to material considerations; but there was some difference of opinion as to which considerations were pre-eminently material. Me Engelman also drew my attention to the recent decision of Simon Brown J in ex parte Bolanle Balogun [1989] Imm AR 199, which is helpful as to the true meaning of visa exempt stamps but which is not otherwise directly in point. For the respondent Mr Sankey argues that in the present case the circumstances were not such as to give rise to a legitimate expectation on the part of the applicant that he could return on the same terms, nor is there anything to suggest that the immigration officer failed to take any relevant consideration into account. The applicant had been away, Mr Sankey points out, for most of the year after the November 1987 grant of leave to remain. Unlike Miss Oloniluyi he had not applied long ago for a further extension of leave. So, a refusal of leave to enter in November did not deprive him of a right to be here whilst an issue already raised was determined. He had not received any oral assurance, and it is clear from the immigration officer's affidavit that he was alive to the endorsements upon the passport and took them into account. Having done that the immigration officer was entitled and, indeed, bound in accordance with rule 58 to deal with the application to re-enter in the light of all the relevant circumstances. The circumstances were such as to suggest that unlike Miss Oloniluyi this applicant was not a genuine student at all. It is true that having come to the United Kingdom in 1980 the applicant, during the years 1980 to 1987, did attend courses and obtained qualifications in management and business studies. Then in late 1987 he enrolled with the Academic College of Education at New Cross on a three-year programme of research leading to a Doctorate in Business Administration. In November 1987 the applicant was interviewed by an immigration officer, Mr George, in connection with his application for leave to remain and he seems to have given no hint then of any plans to go to the United States. He was questioned about how he was being funded, because his Nigerian employer had ceased to fund him in 1984. In the end Mr George, although surprised at the length of time the applicant was taking over his studies, felt that there were no grounds to refuse the applicant an extension of leave to remain; the one-year extension was granted. In the following month the applicant went to the United States leaving his wife and children in the United Kingdom. When he returned on 17 November the immigration officer who interviewed him was Mr Giles. The applicant said that he had been in the United States carrying out research related to his studies; but when the immigration officer telephoned the college at New Cross they found it difficult to remember the applicant and eventually said that he had attended only three or four times before, saying that he had arranged studies in the United States and would be leaving forthwith. The student identification card which the applicant had with him at Heathrow was one which the college had not authenticated. He also had documents suggesting that in the United States he was an authorised independent distributor for Amway Products, and that, on both sides of the Atlantic, as Reverend Adeshipe he was involved in preaching and fund-raising activities. It is perhaps not surprising that Mr Giles was not satisfied that the applicant was a genuine student who intended to leave the United Kingdom on completion of his studies. The history does not end there because here again a Member of Parliament intervened, and the matter was then re-considered by the Minister of State. In his letter of 17 January 1989 the Minister of State indicates that when being interviewed in November 1988 the applicant explained that he had spent some months in the United States researching into pyramid selling, and to that end had worked as a door-to-door salesman. When asked to explain his limited contact with the college at New Cross he at first offered no explanation and then said he hoped to enrol in a course at an establishment in Bushey, Hertfordshire, which he had last attended in 1984 since when, according to the Minister of State, there was little evidence that he had been a genuine student. The Minister of State declined to reverse the decision of the immigration officer and I am not persuaded that it is a decision with which this court should interfere. In particular I am not satisfied that the immigration officer failed to have regard to any material consideration, nor am I satisfied that the applicant had any legitimate expectation to receive from the immigration officer any treatment other than that which he received. Accordingly this application is dismissed.DISPOSITION:
Application dismissedSOLICITORS:
Stuart A West & Co, London N1; Treasury Solicitor.Copyright notice: Crown Copyright
