COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ COLLINS sitting in the Administrative Court dated 8th June 2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE PITCHFORD
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|DANIEL OWUSU BOAHEN
Mr O Ngwuocha (accompanied by Mr Boahen) (instructed by Carl Martin - Solicitors) for the Respondent
Hearing date: 27th April 2010
Crown Copyright ©
Lord Justice Pitchford :
"On the 13th January 2008 you were given leave to enter the UK as a "visitor" but you did not leave until 4th October 2008 which is in breach of the 180 day limit endorsed on the visa. I am thus satisfied that you have failed to observe a condition attached to your stay in the UK, the visa conditions clearly state this. Furthermore you stated that you are in the UK to take care of your uncle's children, and you will [be] given money and accommodation for this. I therefore cancel your leave to enter under paragraph 2A of the Immigration Act 1971 and paragraph 321(i) of the Immigration Rules (HC395).
Further, you do not have a visa for any other purpose and you have failed to produce a passport or other identity document endorsed with a current UK visa issued for the purpose for which entry is sought, I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395).
I therefore refuse you leave to enter the United Kingdom."
Removal directions were set and Mr Boahen was given notice of a limited out of country right of appeal.
"I have decided to issue an amended form IS 82A which more clearly outlines the reasons for the refusal of your client."
The amended notice read as follows:
"On the 26th January 2008 [sic] in Accra you were issued with a United Kingdom entry clearance endorsed "visit" but I am satisfied that there has been such a change of circumstances in your case since the leave was granted that it should be cancelled. The change of circumstances in your case is that you obtained leave to enter as a visitor for five weeks to visit your uncle, Kwadwo Duodo Owusu, but you have stated that you are now seeking entry for six weeks for the purpose of taking care of your uncle's children and that you will be given money and accommodation for doing so, which amounts to paid employment. Mr Owusu has stated that you will stay for two to three months.
I note that you last entered the United Kingdom as a visitor on the 13th January 2008 but you did not leave until 4th October 2008, thereby overstaying by almost three months the 180 day limit endorsed on your visa. You claim that was because you did not feel well and had to consult an NHS doctor, but you have produced no evidence of this. You also claimed that your uncle could not afford to change your return ticket.
I therefore cancel your leave under paragraph 2(A)(8) of the Immigration Act 1971 and paragraph 321A(1) of the Immigration Rules (HC395).
Furthermore, you are now seeking entry for the purpose of employment but you are a visa national and have failed to produce a passport or other identity document endorsed with a valid and current UK entry clearance issued for the purpose for which the entry is sought. I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395).
I therefore refuse you leave to enter the United Kingdom."
The notice proceeded to inform Mr Boahen that directions for removal would be set and that he had a limited out of country right of appeal against the decision. It was common ground before us that it was the amended notice of 11 November 2008 delivered in substitution for the notice of 4 November 2008 which would determine the issues arising in the appeal.
Judgment of Collins J
"7. The question of cancellation is covered by paragraph 321A of the Immigration Rules. Paragraph 321(i) on which the officer appeared to rely in cancelling leave does not apply in respect of cancellation and so that original notice was clearly, in that respect, invalid. Section [sic] 321A, however, states that:
"The following grounds for the cancellation for a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply:
(i) there has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled
There are various other grounds, (conducive and so on) which are not material for the purpose of this case.
8. No doubt recognising that the cancellation of leave (that is the cancellation of the visa) was not permitted by the rule upon which the notice purported to rely, the immigration service, or the border agency, served a further notice on 11th November ."
"9. That [the notice of 11 November] at least referred to the correct rule, so far as cancellation of the visa was concerned. The question is whether there had been, within the meaning of paragraph 321A on the grounds relied on, such a change of the circumstances since leave was given, that it should be cancelled. The Home Office has issued guidance and in relation to change of circumstances this is said:
"Paragraph 321A(1) applies where there has been a change of circumstances in a person's case since the leave was such that it should be cancelled [sic]. Examples of such a change of circumstances would include the withdrawal of an offer of employment in the case of a person with an entry clearance for "Employment", the withdrawal of sponsorship in a student case, or the permanent departure from the United Kingdom of the sponsor of a child coming for settlement".
10. What is clear from that is the fact, if it be a fact, that a particular entry is sought for a purpose which is not covered by the existing visa does not of itself mean that cancellation of the visa is justified. It is only if the material persuades the immigration officer that there is now a permanent desire, or a permanent intention, not to use the visa for proper visits, but only for visits which are going to be in breach of the terms of visit because they are going to be for employment, that then, and only then, can the revocation of the visa properly be put into effect.
11. Equally there is nothing in Rule 321A which permits cancellation purely on the basis that there has been a breach of condition on a previous visit so that the overstaying again by itself would not justify a cancellation of the visa. However, what was put to the immigration officer on his account, justified a refusal of leave to enter. Equally the previous overstaying would justify such a refusal on the basis that the officer was not satisfied that he intended to enter purely as for the term that he was permitted as a visitor. That again would be a possible justification of a refusal of leave to enter.
12. Accordingly, although I take the view that the immigration officer could have spelt out, if he had chosen to do so, a proper basis for a cancellation, he did not do so and one has to take his reason at face value. Those reasons given do not justify the cancellation of the visa. However, as I say, I have no doubt that the refusal of leave to enter was lawful."
Summary of Secretary of State's case
The Statutory Scheme
"2. Subject to Article 6 (3) [which does not apply to the current circumstances], an entry clearance which complies with the requirements of Article 3 shall have effect as leave to enter the United Kingdom to the extent specified in Article 4, but subject to the conditions referred to in Article 5.
3 (1) Subject to paragraph (4) [which does not apply to the current circumstances] an entry clearance shall only have effect as leave to enter if it complies with the requirements of this article.
(2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom.
(3) The entry clearance must be endorsed with:
(a) the conditions to which it is subject; or ...
4 (1) A visit visa during its period of validity shall have effect as leave to enter the United Kingdom on an unlimited number of occasions, in accordance with Paragraph (2).
(2) On each occasion the holder arrives in the United Kingdom, he shall be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom for the limited period beginning on the date of arrival, being:
(a) six months, if six months or more remains of the visa's period of validity: or
(b) the visa's remaining period of validity if less than six months.
(4) In this article (period of validity) means the period beginning on the day on which the entry clearance becomes effective and ending on the day on which it expires.
5 An entry clearance shall have effect subject to any conditions, being conditions of a kind that may be imposed on leave to enter under Section 3 of the Act, to which the entry clearance is subject and which are endorsed on it."
"6 (1) Where an immigration officer exercises his power to cancel leave to enter under Paragraph 2A(8) of Schedule 2 to the Act [i.e. Immigration Act 1971] in respect of an entry clearance which has effect as leave to enter, the entry clearance shall cease to have effect.
(2) If the holder of an entry clearance
(b) Seeks to enter the United Kingdom for a purpose other than the purpose specified in the entry clearance an immigration officer may cancel the entry clearance.
2A(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.
(2) He may be examined by an immigration officer for the purpose of establishing
(a) Whether there has been such a change in the circumstances of his case since that leave was given, that it should be cancelled;
(b) Whether that leave was obtained as a result of false information given by him or his failure to disclose material facts;
(c) Whether there are medical grounds on which that leave should be cancelled.
(2A) Where the person's leave to enter derives by virtue of Section 3A(3) from an entry clearance he may also be examined by an immigration officer for the purpose of establishing whether the leave should be cancelled on the grounds that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance.
(3) He may also be examined by an immigration officer for the purpose of determining whether it would be conducive to the public good for that leave to be cancelled.
(4) He may also be examined by a medical inspector or by any qualified person carrying out a test or examination required by a medical inspector.
(8) An immigration officer, may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.
(9) Cancellation of a person's leave, under sub-paragraph (8), is to be treated for the purposes of this act and part 5 of the Nationality, Immigration of Asylum Act 2002 (Immigration and Asylum appeals) as if he had been refused leave to enter at a time when he had a current entry clearance".
It is common ground that paragraph 2A(2)(a) and 2A(2A) applied to Mr Boahen.
"320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused.
(5) Failure in the case of a visa national, to produce to the immigration officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;
Each of sub-paragraphs 320(1) to 7(C ), subject to paragraph 321, set out circumstances which must result, under the Rules, in the refusal of leave to enter. They include, for example, that entry is sought for a purpose not covered by the Rules; the fact that the person seeking entry is the subject of a deportation order; a failure to produce a valid passport or identity document; when false representations have been made or false documents submitted; or, subject to limited exceptions, where the visitor has previously breached the UK's immigration laws. Paragraph 320(8) (20) sets out circumstances in which a visitor, subject to paragraph 321, should normally be refused leave to enter. They include: a failure by the visitor to furnish relevant information; a refusal to undergo medical examination; and where refusal would appear to be conducive to the public good.
"321. A person seeking leave to enter the United Kingdom who holds an entry clearance which was duly issued to him and is still current may be refused leave to enter only where the immigration officer is satisfied that:
i) false representations were made or false documents or information were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application for entry clearance; or
ii) a change of circumstances since it was issued has removed the basis of the holder's claim to admission, except where the change of circumstances amounts solely to the person becoming over age for entry in one of the categories contained in paragraphs 296 316 of these rules since the issue of the entry clearance; or
iii) refusal is justified on grounds of restricted returnability; on medical grounds; on grounds of criminal record; because the person seeking leave to entry is the subject of a deportation order or because exclusion would be conducive to the public good".
"321(A). The following grounds for the cancellation of a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside the United Kingdom apply:
1. There has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled: or
2. False representations were made, or false documents were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application to leave; or
3. Save in relation to a person settled in the United Kingdom or where the immigration officer or the Secretary of State is satisfied that there are strong compassionate reasons justifying admission, where it is apparent that, for medical reasons, it is undesirable to admit that person to the United Kingdom; or
4. Where the Secretary of State has personally directed that the exclusion of that person from the United Kingdom is conducive to the public good; or
5. Where from information available to the immigration officer or the Secretary of State, it seems right to cancel leave on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of that person it is undesirable for him to have leave to enter the United Kingdom; or
6. Where that person is outside the United Kingdom, failure by that person to supply any information, documents, copy documents, or medical report requested by an immigration officer or the Secretary of State. "
(a) at the time of the refusal [of leave to enter] the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant has entry clearance."
Section 92(1) (in country right of appeal) would, therefore, apply to a visitor refused leave to enter under paragraph 321 and 321A of the Rules. Section 92 continues:
"(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.
(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 resulting from cancellation of leave to enter by an immigration officer
(a) under paragraph 2A(8) of that Schedule; and
(b) on the grounds specified in paragraph 2A(2A) of that Schedule."
Section 92(1) (in country right of appeal) would not, therefore, apply to a visitor whose leave to enter has been cancelled under paragraph 2A(9) because he arrived for a purpose different from that specified in his entry clearance. He would be limited to an out of country right of appeal. Section 92 continues:
"(3C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance."
A person seeking leave to enter and refused leave under paragraph 320(5) will enjoy only an out of country right of appeal. If paragraph 320(5) applies to a person who has entry clearance, but is refused leave to enter on arrival for change of purpose (but see paragraphs 28-31 below), he also enjoys only an out of country right of appeal.
Discussion and Conclusion
Interpretation of Rule 320(5)
i) The 2000 Order;
ii) Schedule 2 to the 1971 Act; and
iii) Paragraphs 320 321A of the Immigration Rules.
"A person can also have their leave cancelled if they seek to entry [sic] for a purpose not specified by their entry clearance; although this refusal would fall under paragraph 320(5) and not paragraph 321A of HC 395." [emphasis added]
When dealing with "7. Change of Purpose" the Manual proceeds:
"Although refusing leave to enter to a passenger with a current entry clearance (which has the effect of leave to enter) based on a change of purpose is covered by paragraph 320(5) and not paragraph 321A, it is worth mentioning here. It is important to illustrate the difference between refusal on the grounds of change of purpose and refusal on the grounds of change of circumstances.
Where a person with a valid entry clearance seeks to enter the UK, leave can be cancelled on the basis where:
- The passenger admits that leave is being sought for a different purpose than specified on his entry clearance, e.g. a person with a visit visa seeking entry to follow a course of study;
- There is clear evidence that the passenger's purpose of stay is different to that stated in his entry clearance, as with the above example, any documents found in the passenger's belongings about his course of study. Or an employer's letter with someone who was actually seeking entry to work."
In my judgement this advice is wrong, for the following reasons:
(1) The summary incorrectly treats refusal synonymously with cancellation. Cancellation is to be treated as refusal of entry only for the purposes of appeal under section 92 of the 2002 Act. They are not otherwise synonymous terms. Paragraph 320(5) does not deal with cancellation; it deals with refusal of leave to enter. Leave to enter can be cancelled for change of purpose, but the power is given under paragraph 2A(2A) and (8) of Schedule 2 to the 1971 Act and not paragraph 320(5). Paragraph 320(5) applies only to a visitor who is seeking entry clearance or leave to enter, not to a person who already has leave to enter but who has arrived for a purpose different from the purpose specified in his entry clearance.
(2) Paragraph 7 of the advice assumes a power to refuse leave to enter on the ground of change of circumstances. Paragraph 321A of the Rules and paragraph 2A(2) and (8) of Schedule 2 do not give a power to refuse leave to enter but a power to cancel an existing leave to enter.
(3) The advice is, however, correct to distinguish between the power to cancel under paragraph 321A on six grounds, including change of circumstances, and the power to cancel for change of purpose under paragraph 2A(2A).
(1) Whether Mr Boahen's deemed leave to enter as a visitor under the visa should be cancelled either under paragraph 2A(2A) or (2A(2)(a) (and/or paragraph 321A(1) of the Rules) and (8) of Schedule 2; and, if so
(2) Whether Mr Boahen, as a visa national, should be refused leave to enter under paragraph 320(5) on the ground that he was unable to produce a passport containing a visa which authorised his entry for the purpose of work.
Change of Circumstances
Lord Justice Thomas
Lord Justice Mummery