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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mon, Re Judicial Review [2003] ScotCS 295 (28 November 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/295.html Cite as: [2003] ScotCS 295 |
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OUTER HOUSE, COURT OF SESSION |
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P578/03
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OPINION OF LADY PATON in Petition of ROMANO YEE MON Petitioner; for judicial review of the decision of the Secretary of State for the Home Department to refuse leave to enter dated 25 March 2003 ________________ |
Petitioner: Govier, Advocate; Wilson Terris & Co., S.S.C.
Respondent: Lindsay, Advocate; Advocate General's Office
28 November 2003
Refusal of leave to enter the United Kingdom as a student
[1] The petitioner is a national of Trinidad and Tobago. He was born on 25 September 1961 and is currently aged 42. The respondent is the Secretary of State for the Home Department.[2] On 31 March 1994, the petitioner arrived in the United Kingdom. He was then aged 32 and married. He was granted leave to enter as a visitor. When his leave expired, he was refused an extension of leave. He nevertheless remained in the United Kingdom without permission. He commenced a one-year nursing course in Uxbridge College. He left college without having achieved a formal qualification. He then worked as a part-time auxiliary nurse at Hayes Cottage Hospital, Middlesex. Between 1995 and 1997 he made applications to various educational establishments. On 28 August 1997 he was given leave to remain in the United Kingdom as a student. That leave was extended until 30 January 1999. During the period 1997 to 1999, the petitioner attended a nursing course at Napier University, Edinburgh. He achieved no formal qualification. The petitioner's leave to remain was again extended, until 31 January 2000. In January 2000 the petitioner left the United Kingdom, but returned in June 2000, arriving at Edinburgh airport. He was granted leave to enter as a student until 12 December 2000. On 1 January 2001, the petitioner was granted leave to remain in the United Kingdom as a dependant of his wife, who was living and working in the United Kingdom. The leave was to expire on 31 October 2001. The petitioner and his wife were divorced in the United Kingdom during the summer of 2001. Nevertheless, the petitioner's leave to remain was not withdrawn, as divorced spouses are in certain circumstances recognised as dependants. During a subsequent immigration interview on 25 March 2003 (referred to below), the petitioner explained that he maintained a close relationship with his ex-wife, even after their divorce. His ex-wife and their two children continued to live in the United Kingdom.
[3] In 2002, the petitioner enrolled at the Pitman Training Centre, York Place, Edinburgh, in order to obtain an Executive P.A. diploma, and a Training Accounting Technician diploma.
[4] In late 2002 or early 2003, the petitioner's mother died. The petitioner visited Trinidad in order to deal with the will. He remained in Trinidad for about two months.
[5] On 25 March 2003, the petitioner returned to the United Kingdom. He landed at Heathrow Airport. He was interviewed by an immigration officer, Miss Amy Daly. He sought leave to remain in the United Kingdom as a student.
[6] Following upon the interview, Miss Daly compiled a manuscript précis (the last page of number 7/1 of process) in the following terms:
"[Mr. Yee Mon] sought entry for 12 months to study @ Pitman Training Centre
Reasons for refusal:
Refused entry authorised by CIO [chief immigration officer] Butler
Para.59 of HC395
TA [temporary admission] pending removal on 31/3/03
Amy Daly
25/03/03
1450 hr."
[7] The decision was therefore to have the petitioner removed from the United Kingdom on 31 March 2003. A Notice of Refusal of Leave to Enter (Form IS82C) number 7/2 of process was served upon the petitioner on 25 March 2003. The notice advised the petitioner that the immigration officer was not satisfied that the petitioner was a genuine student who intended to leave the United Kingdom on completion of his studies. The notice also advised that there was no in-country appeal, any right of appeal only being available once the petitioner had left the United Kingdom.
[8] Before the removal order was carried out, the petitioner obtained legal advice. A petition for judicial review was served upon the respondent, seeking reduction of the decision to refuse leave to enter. As a result, the removal scheduled for 31 March 2003 was cancelled.
[9] Thereafter in June 2003, the petitioner stopped attending the Pitman Training Centre without having completed either part of the course, as he considered that the course was too basic for him. He enrolled in a 2-year Higher National Diploma in Business Administration at Stevenson College, Edinburgh, commencing in September 2003. Accordingly, as at the date of the first hearing on 29 October 2003, the petitioner had not obtained any qualification from an educational institution in the United Kingdom.
Immigration rules
[10] Part 3 of the Immigration Rules (HC 395) is headed "Persons seeking to enter or remain in the United Kingdom for studies".
[11] Rules 57 to 59 provide as follows:
"STUDENTS
Requirements for leave to enter as a student
Leave to enter as a student
58 A person seeking leave to enter the United Kingdom as a student may be admitted for an appropriate period depending on the length of his course of study and his means, and with a condition restricting his freedom to take employment, provided the Immigration Officer is satisfied that each of the requirements of paragraph 57 is met.
Refusal of leave to enter as a student
59 Leave to enter as a student is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 57 is met."
Submissions for the petitioner
[12] Mr. Govier, for the petitioner, invited the court to sustain the petitioner's plea-in-law, which was in the following terms:
"The decision which the petitioner seeks to have reviewed being unreasonable et separatim unlawful, reduction and suspension should be pronounced as craved."
Referring to Wordie Property Co. Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345, counsel submitted that the immigration officer, representing the respondent, had taken into account irrelevant considerations; left out of account relevant and material considerations; relied upon matters for which there was no proper factual basis; and in the result, had reached a decision which was so unreasonable that no reasonable decision-maker could have reached it.
[13] Referring to the immigration officer's manuscript précis, counsel contended that there was no proper factual basis for the first entry (Previous student. Been here since 1994 + not actually qualified). While not denying that the petitioner had been a previous student, and that he had not actually qualified, it was pointed out that the petitioner had not in fact resided continuously in the United Kingdom since 1994. On the contrary, he had left the United Kingdom in January 2000, had been absent for 6 months, and had then returned in June 2000.
[14] In relation to the second entry, it could not be denied that the petitioner had changed courses. But such a change in career direction was hardly unusual. As the petitioner explained during his immigration interview on 25 March 2003, he thought that he would do better at management. He wanted to return to his country, and become self-employed. The second entry was therefore not a relevant or material consideration. It should not have been taken into account.
[15] As for the third entry, about being divorced, with his ex-wife and children living in the United Kingdom, the immigration officer had failed to refer to the petitioner's more extended family in Trinidad and Tobago - his two brothers, two uncles, four aunts, nephews, and nieces. The presence of the petitioner's divorced wife and their two sons in the United Kingdom was not a relevant or material consideration when assessing whether or not the petitioner would indeed leave the country upon completing his studies.
[16] So far as the fourth and fifth items were concerned, (No clear plans in Trinidad, and no set job to return to), these gave rise to mere suspicion, which was inappropriate to take into account: Macdonald's Immigration Law and Practice (5th ed), page 338, at paragraph 9.47. Accordingly the fourth and fifth matters were not relevant and material considerations to take into account.
[17] In the sixth entry (C1 when he + wife were divorced), the abbreviation "C1" was a reference to a customs stamp used where an individual was granted leave to work or study in the United Kingdom as a dependant of someone with a right to remain in the United Kingdom. Again that was an irrelevant and immaterial matter which should not have been taken into account.
[18] As for the seventh entry ("No view of settling down"), it was not clear what was meant - whether the petitioner had expressed no view about settling down; or whether the petitioner had expressed his own opinions and intentions indicating that he was not going to settle down; or whether the entry represented the immigration officer's own objective assessment of the facts. If it was merely a statement of a conclusion which the immigration officer had reached on the basis of what she had been told, it added nothing to the reasons for refusal of leave.
[19] In conclusion, Mr. Govier submitted that his criticisms, cumulatively and individually, made the decision of 25 March 2003 objectionable. He invited the court to sustain the petitioner's plea-in-law, to repel the respondent's two pleas-in-law, and to reduce the decision of 25 March 2003.
Submissions for the respondent
[20] Mr. Lindsay, for the respondent, submitted that the respondent's second plea-in-law should be sustained, the petitioner's plea-in-law refused, and the orders sought refused.
[21] The decision of 25 March 2003 was a lawful and reasonable decision. On the basis of the information available to the respondent, it could not be said that the decision was unreasonable in the Wednesbury sense. The decision was within the range of decisions open to a reasonable decision-maker in the circumstances. It was possible that another decision-maker might have come to another conclusion on the merits. But the supervisory jurisdiction of the Court of Session was not a right of appeal. Provided that the decision fell within the range of decisions open to a reasonable decision-maker, the court could not reduce it.
[22] Sub-paragraphs (i) to (vi) of immigration rule 57 were cumulative. All six had to be met. If one was not satisfied, it was mandatory for the immigration officer to refuse leave to enter. The present case concerned rule 57(iv). Counsel referred to Virendmakumar Patel [1983] Imm. A.R. 76, in particular to Dillon L.J. at page 79. The respondent believed that the petitioner was using the student rules as a "stepping-stone to settlement" within the United Kingdom: cf. Dillon L.J. at page 79. The immigration rules relating to students were not designed to allow people to settle in the United Kingdom. The rules permitted only a limited stay for the purpose of pursuing a course of study. The question whether someone would return home at the end of his studies was a question of fact, to be decided by the immigration officer on the basis of the evidence available. Such a finding-in-fact could only be challenged on the basis that it was unreasonable in the Wednesbury sense. But unreasonableness in the Wednesbury sense was a very high test: cf. Clyde and Edwards, Judicial Review, paragraphs 21.05 - 21.06; Mutasa v. Secretary of State for the Home Department, 2003 S.L.T. 462, at page 465H.
[23] The final page of the manuscript record number 7/1 of process represented the working notes made by the immigration officer for her own use, recording what she had taken into account. It was not a formal determination by a special adjudicator. The only formal decision document required in the present case was the Refusal of Leave Form. That form stated the reason for refusing leave, namely that rule 57(iv) had not been satisfied. While it was legitimate to have regard to the working notes (cf. Mutasa, cit. sup.), they were not to be construed in same way as a conveyancing document, or a speech from the House of Lords.
[24] Taking the entries in the manuscript notes one by one, each was accurate, material, and relevant. The petitioner had indeed been a previous student. He had not actually qualified. He had been in the United Kingdom since 1994 in the sense that he had arrived in 1994 and since then had spent most of his time in the United Kingdom. The immigration officer was not asserting that the petitioner had lived exclusively in the United Kingdom, or that he had never left the United Kingdom during the relevant period. The first entry was accordingly correct, material, and relevant when considering whether the petitioner was using the student rules as a stepping-stone to settlement within the United Kingdom. The petitioner's life during the period 1994 to 2003 suggested that he was doing just that.
[25] The complete change in career direction, and the fact that the petitioner had never qualified, were also relevant considerations to be taken into account.
[26] The third factor, concerning the petitioner's ex-wife and sons living in the United Kingdom, was relevant. It was understandable that the petitioner might want to be near his two sons, and also, if he had maintained a good relationship with his ex-wife (as he claimed he had) that he might want to remain near her.
[27] So far as the fourth and fifth matters were concerned, clearly if the petitioner had a good job in Trinidad and Tobago, and had firm plans about what he was going to do there, that would suggest that he was going to return to Trinidad after his studies. But the petitioner had no clear plans, and no job to return to. Those were relevant considerations when attempting to assess whether or not the petitioner was going to return to Trinidad at the end of his studies, when he had no family there, no plans, and no job.
[28] The sixth item, the C1 stamp, was not an irrelevant consideration, as it was part of the petitioner's immigration history.
[29] The seventh item (No view of settling down) was in effect an extension of the fourth and fifth matters, and suggested that the petitioner was not someone with close family, a job, or career plans in Trinidad and Tobago.
[30] Putting all these matters together, the immigration officer had asked herself, in terms of rule 57(iv), whether the petitioner intended to leave the United Kingdom at the end of his studies. The officer had properly identified relevant and material considerations. The matters which she had taken into account disclosed no errors as to material facts. The matters considered were relevant when assessing whether or not the petitioner would return to Trinidad and Tobago. The conclusion which the officer reached was a reasonable conclusion, within the range of conclusions which a reasonable immigration officer was entitled to reach. Looked at objectively, the conclusion was not "so devoid of any plausible justification that no reasonable [officer] could have reached [it]": cf. Lord Diplock at page 821 of Bromley L.B.C. v Greater London Council [1983] 1 AC 768. On the contrary, the decision had such justification. The petitioner had resided mainly in the United Kingdom since 1994. He had attended a variety of educational establishments. He had achieved no qualifications. He had no obvious incentive to return to Trinidad and Tobago. In particular he had no job, and no firm plans. His ex-wife (to whom he was close) was in the United Kingdom, as were his two sons. There was every incentive for the petitioner to remain in the United Kingdom. The decision could not be said to be irrational. Another immigration officer might have reached a different view, but it did not follow that the decision taken on 25 March 2003 was irrational in the Wednesbury sense. The respondent's second plea-in-law should be sustained, and the orders sought refused.
Opinion
[31] Leave to enter the United Kingdom to pursue a course of study is granted only where each of the requirements in sub-paragraphs (i) to (vi) of rule 57 of the immigration rules (HC 395) is met: see rule 59. Rule 57(iv) provides that the immigration officer must be satisfied that the individual "intends to leave the United Kingdom at the end of his studies". That is a question of fact, to be determined by the officer on the basis of the evidence available: Virendmakumar Patel v Immigration Appeal Tribunal [1983] Imm. A.R. 76.
[32] In the present case, the immigration officer took into account the evidence outlined in her working notes. In my view each item which she recorded accurately reflected the known facts. Each item was material. Each was relevant. Accordingly I do not accept that the officer took into account inaccurate, or immaterial, or irrelevant information. Nor do I consider that she left out of account any relevant or material factor. Further, the conclusion reached on the basis of the evidence available fell within the range of decisions which a reasonable immigration officer could have taken. The decision cannot in my view be described as Wednesbury unreasonable. I am not persuaded that it should be reduced.
Conclusion
[33] I shall repel the petitioner's plea-in-law, sustain the respondent's second plea-in-law, and refuse the orders sought. I reserve the question of expenses to enable parties to address me on that matter.
