Grazales v. Secretary of State for the Home Department
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 25 May 1990 |
| Citation / Document Symbol | [1990] Imm AR 505 |
| Cite as | Grazales v. Secretary of State for the Home Department, [1990] Imm AR 505, United Kingdom: Court of Appeal (England and Wales), 25 May 1990, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b62d14.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. |
GRAZALES v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Court of Appeal (CIVIL DIVISION)
[1990] Imm AR 505
Hearing Date: 25 May 1990
25 May 1990
Index Terms:
Judicial review -- student -- refused leave to enter -- whether judicial review the appropriate remedy -- the nature of exceptional circumstances which take a case out of the normal rule laid down in Swati and Doorga and make inappropriate an appeal from abroad to the immigration appellate authorities. Immigration Act 1971 s 13.
Held:
Renewed application for leave to move for judicial review, following refusal of leave by Potts J. The applicant was a citizen of Columbia who was refused leave to enter the United Kingdom when he arrived intending to study English. The immigration officer was not satisfied that the applicant was a genuine student who would leave the United Kingdom at the end of his course. Application was made for leave to move for judicial review on the basis that it was highly desirable that the applicant should be able to study English in the United Kingdom, that he was a genuine student and had complied with the technical requirements of the relevant rules, insofar as he had been accepted for his course. Those, it was submitted constituted special or exceptional circumstances, following Kharrazi, and took the case outside the normal rule, laid down in Swati and Doorga that persons refused leave to enter should exercise their right of appeal under the 1971 Act, from abroad, to the immigration appellate authorities. Potts J had ruled that the facts set out above did not constitute special circumstances. The arguments put forward at first instance were repeated before the Court of Appeal. Held: 1. The matters put forward by counsel did not constitute special or exceptional circumstances such as would take the case outside the ambit of the rule laid down in Swati and Doorga: Kharrazi was to be distinguished on the facts. 2. There was nothing in the evidence to show there was any danger or practical obstacle to the applicant in this case returning to Columbia and pursuing an appeal in the normal way. 3. To take a case outside the general rule "the exceptional circumstances must be germane to the decision as to whether or not the applicant ought to follow the normal rule and make his appeal . . . in accordance with the Act."Cases referred to in the Judgment:
R v Chief Immigration Officer, Gatwick ex parte Kharrazi [1980] 1 WLR 1396: [1980] 3 All ER 373. Taj Mohd Swati v Secretary of State for the Home Department [1986] 1 WLR 477: [1986] Imm AR 88. Davendranath Doorga v Secretary of State for the Home Department [1990] Imm AR 98. R v Secretary of State for the Home Department ex parte Jorge Grazales (unreported, QBD, 11 May 1990).Counsel:
G Syril for the appellant; D Pannick for the respondent PANEL: Purchas, Staughton LJJ, Sir Denys BuckleyJudgment One:
PURCHAS LJ: This is a renewed application by Jorge Grazales for leave to move for judicial review of a decision made by an immigration officer refusing him leave to enter the United Kingdom, he seeking such leave in order to study English. The immigration officer in the notice of refusal of leave to enter gave these reasons: ". . . I am not satisfied that you are a genuine student who will leave the United Kingdom on completion of your studies". He made proposals for the removal of the applicant back to Bogota, Columbia on a nominated flight. That has not taken place. The applicant is now detained in an appropriate institution under the provisions of the immigration laws. The application, which came before Potts J who refused it, was supported by evidence of a certificate from the institution where it was proposed that the applicant should study English for three months. Attached to the affidavit there was also evidence which is alleged to satisfy the authorities that there is financial support for the applicant. So it is said by Mr Syril (who has presented with skill and attraction this renewed application and made every point that could be made) that the applicant complied faithfully, it would appear, with the requirements of the Immigration Act. What he did not succeed in doing, however, was to persuade the immigration officer that he was a genuine student who intended at the end of his studies to leave the United Kingdom. Mr Syril accepts that in order to succeed he has to show, firstly, that there is an arguable case to establish on the Wednesbury principles that the immigration officer acted in the context of the established evidence unjustifiably and in a way that no immigration officer, applying the proper rules, could have acted. There are two principles which have to be established before leave will be granted. Firstly, as I have said, there must be an arguable case presented on the evidence in support of the application. Secondly, there must be shown exceptional reasons why the relief of judicial review should be granted when there is an alternative remedy available to the applicant under the provisions of the Immigration Act 1971. That remedy is granted by section 13 which provides that a person who is refused leave to enter the United Kingdom may appeal to an adjudicator against that decision. This applicant, not being one who falls within the provisions of section 13(3) has to appeal against the refusal of leave at a time when he is no longer in this country. That means that he must return to Bogota or some other place outside the United Kingdom from which he can seek his remedy under section 13(1). The authorities are now well established. They are to be found in R v Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477, which was referred to conveniently in a recent judgment of Lord Donaldson MR in the case of Davendranath Doorga v Secretary of State for the Home Department [1990] Imm AR 98 at page 100. Referring to the granting of leave by Kennedy J the Master of the Rolls said this: ". . . the learned judge must have overlooked the decision of this court in R v Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477, in which it was held that, in addition to considering whether there was an arguable case (which, of course, is something which every judge, when asked to give leave, must take into consideration), the court also had to take account of whether there was an alternative remedy provided for just this type of case. It was said by the Crown, as was said in Swati, that the applicant's case was indistinguishable from the ordinary run of case in which somebody applies for entry into this country, either as a visitor or a student or a number of other well-known categories and is surprised and dissatisfied when his application is refused by an immigration officer". Mr Syril has directed the court's attention to R v Chief Immigration Officer, Gatwick Airport, ex parte Kharrazi [1980] 3 All ER 373. In the leading judgment of Lord Denning MR the question of special circumstances was considered. The ratio decidendi in that case in the majority judgments was that the applicant, who was applying for leave to enter as a student, would be returned to Iran. If he was so returned, in order to make his application under section 13, the evidence was that he would be caught up in the war existing in that area of the world and would, as a matter of practicality, be prevented from following his remedy under section 13. That is a wholly different case from the present case. Although Mr Syril has said that there are difficult circumstances in Columbia, the burden of his submissions was that it was highly desirable that the applicant should follow a course of English in this country, that he was a genuine student, that he had complied with the technical requirements and that, therefore, he was an exceptional case so as to bring him within the approach recognised in Kharrazi. In my judgment that is a misunderstanding of the nature of the exceptional circumstances envisaged in the authorities to which I have referred. The exceptional circumstances must be germane to the decision as to whether or not the applicant ought to follow the normal rule and make his appeal to an adjudicator in accordance with the provisions of the Act. There was nothing shown in the evidence exhibited to the application to demonstrate that there was any danger or practical obstacle to this applicant returning to Columbia and pursuing the normal procedure of appealing under section 13. For these reasons I would refuse this application.Judgment Two:
STAUGHTON LJ: I agree.Judgment Three:
SIR DENYS BUCKLEY: I also agree.DISPOSITION:
Application refusedSOLICITORS:
Glen Evans & Co, Reading; Treasury SolicitorCopyright notice: Crown Copyright
