England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr David Pannick QC sitting as a deputy judge of the High Court)

		Royal Courts of Justice Strand London WC2 Tuesday, 18th December 2001

1. LORD JUSTICE DYSON: The appellants seek permission to appeal the decision of Mr David Pannick QC sitting as a Deputy High Court judge. On 11th September 2001 he dismissed their applications for judicial review of decisions by the immigration officer which were communicated by notices dated 8th March 2000 refusing them leave to enter the United Kingdom as students. The appellants are sisters and citizens of Thailand. There are differences between the facts in the two cases but they are immaterial for present purposes. I shall in this judgment base myself on the case of Supatra Khunsanong.
2. The essential facts and the key statutory material are set out at paragraphs 1 to 11 of the judge's judgment. I do not propose to set them out. Supatra Khunsanong was interviewed, it seems on about 25th February 2000. She stated that she had started an English course at Evendine School on 1st February and intended to stay in the United Kingdom for a further 12 months as a tourist before returning to Thailand. She then said that after completing her course she hoped to embark on a textile design course. The interviewing officer formed the view that she did not intend to leave the United Kingdom on the completion of her current course of studies. She was interviewed again on 8th March. She said that her statement about wishing to stay on for 12 months as a tourist had been misunderstood. She again mentioned the textile design course. Immediately following this interview the immigration officer gave notice of refusal, stating:

"You have sought leave to re-enter the United Kingdom as a student of English, and when you last left the United Kingdom you had leave to remain in that capacity until 30th November 2000. However, in all the circumstances I consider that it is appropriate to treat you now in a special light and I am not satisfied that you intend to leave the United Kingdom on completion of these proposed studies."

3. The reasons were given in the form of a memorandum dated 25th February. That may have been misdated 25th March.
4. On 16th March she started judicial review proceedings to quash the decision of 8th March. One of the grounds of challenge was that the immigration officer had refused leave to enter because he was not satisfied that she intended to leave the United Kingdom on completion of a particular course of studies, namely her English course at Evendine College, whereas rule 57(iv) of HC 395 requires that a person seeking leave to enter the United Kingdom as a student "intends to leave the United Kingdom at the end of his studies", i.e. his studies generally. She was interviewed again on 2nd May. On 4th May the immigration officer wrote a letter in which he stated that the reason previously given for refusal might not be "wholly adequate". The "revised" reasons for refusal of leave to enter were then given. He said that he was not satisfied that Supatra Khunsanong intended to leave the United Kingdom "on completion of any course of study". Full reasons were given in a letter dated 15th May, in which the immigration officer gave his detailed reasons for not being satisfied that she would not leave the United Kingdom following any further course of studies.
5. It was common ground in the court below that if the immigration officer focused on whether the appellant intended to leave at the end of her then current course of study, then he was wrong in law to do so: see R v Chief Immigration Officer, ex parte Kharrazi [1980] 1 WLR 1296.
6. The primary submission of Mr. Jones is that the decision of 8th March was fundamentally flawed, in that the immigration officer did focus on the question of whether the appellant intended to leave the United Kingdom at the end of her current English course, and not on whether she intended to leave at the end of her studies generally. He submits that what the immigration officer purported to do in his letter of 4th May was to correct this fundamental flaw, but that this was something that he had no power to do. He accepts that the immigration officer could have elaborated on the reasons for refusal previously given, could have considered further evidence and/or representations submitted by the applicant following a refusal, and could have withdrawn the earlier notice and embarked upon a further examination: see the decision of Simon Brown J in R v Secretary of State for the Home Department, ex parte Siddique [1991] Imm AR 127. But, submits Mr. Jones, what the immigration officer could not do was simply to amend the notice of refusal. It seems to me that it is clear that the immigration officer did not give notice of cancellation of the decision of 8th March which he could have done pursuant to paragraph 6(3) of Schedule 2 to the 1971 Immigration Act. In my judgment, the deputy judge was right in saying that what the immigration officer did in this case was to clarify and give a further explanation of the reasons that he had advanced in support of the decision of 8th March. If that is right, then that is the end of this challenge. I would refuse this application on that single ground alone. But even if I were wrong about that, then it would be right to approach this application on the footing that the decision of 8th March was at any rate arguably a flawed decision, in the sense that the immigration officer applied the wrong test. Mr. Jones does not argue that if that is the correct analysis of what happened, then the decision of 8th March was a nullity, any more than he would seek so to argue if the decision were flawed for any other legal error. The question that would arise, if arguably the decision of 8th March were flawed for legal error, would be whether it would be right to allow a challenge of that decision by way of judicial review. The difficulty facing Mr. Jones is that there is available to these applicants a statutory right of appeal which enables not only errors of law to be considered but the merits as well. It is not disputed by Mr. Jones, and it is well established on authority, that it is only in exceptional circumstances that a court will entertain an application for judicial review where there is an alternative statutory right of appeal. He accepted in the court below and does not dispute that the fact that the right of appeal in this case would have to be exercised from abroad cannot of itself be sufficient to establish exceptional circumstances.
7. Two points were advanced before the deputy judge in support of the submission that there were exceptional circumstances in this case. The first was that the error of law is so obvious and fundamental that this in itself is a sufficient reason to justify characterising the circumstances of this case as exceptional. Mr. Jones relied upon the decision of Laws J in R v Secretary of State for the Home Department, ex parte Capti-Mehmet, 18th July 1996. Laws J considered the question of exceptional circumstances in this context and said that:

"Where the adjudicator's decision is obviously flawed in such a way that the court is bound to conclude that the applicant has been denied what Lord Prosser called 'substantial justice' before him, that will be a powerful factor. An extreme case (which of course will never arise) would be if an adjudicator had acted in bad faith. Short of that there might be instances where an adjudicator had frankly misunderstood his jurisdiction, or for some reason or other patently failed to grapple with issues he had to decide. There may be other situations and the question of whether an applicant has been denied substantial justice will have to be considered case by case."

8. Mr. Pannick QC at paragraph 24 of his judgment said that there were in the present case arguable grounds for contending that the immigration officer misapplied the legal test, but he did not accept that the error was so manifest or fundamental that it could give rise to exceptional circumstances. As I understand it, in that paragraph of his judgment he was applying the approach suggested by Laws J in the judgment to which I have referred. I would agree with the deputy judge that, although an error of law may establish exceptional circumstances where the error is manifest or fundamental, that is not this case. Put at its highest, the error in this case is an arguable one. I would therefore reject the first suggested factor as amounting to exceptional circumstances.
9. The second factor relied on by Mr Jones was that the relevant policy had recently been changed. The immigration rules were changed with effect from 30th July 2000. After that date, if persons travel abroad during the period of their limited leave of six months or more, then on return to the United Kingdom they would normally be allowed to re-enter. That emerges from paragraph 20 of HC 395 as amended by HC 704. Mr Jones accepted that this amendment to rule 20 did not directly apply in the present case because the appellant returned to this country prior to 30th July 2000. He nevertheless contended that the change of policy was relevant to whether there were exceptional circumstances in this case. The deputy judge rejected that for the reasons compellingly given at paragraph 28 of his judgment, which I adopt.
10. Finally, Mr. Jones makes the point that it would be unduly harsh for these two appellants to have to return to Thailand, interrupting their courses of study, when it is apparent that the decisions of 8th March 2000 cannot be sustained. For the reasons that I have given, the highest that the case can be put is that it is arguable that the decisions of 8th March are bad in law. I do not agree that exceptional circumstances are made out in this case. For all these reasons I would refuse this application for permission to appeal.
11. LORD JUSTICE ROBERT WALKER: I agree. The application is dismissed.
Order: Application dismissed; public funding assessment.