CO/4766/1999
Neutral Citation Number: [2000] EWHC 633 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
Strand
London WC2

Date: Monday, 3rd July 2000
 
B e f o r e:

MR JUSTICE SULLIVAN

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REGINA

- v -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
EX PARTE MAPERE

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(Computer‑aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040/0171‑404 1400
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Official Shorthand Writers to the Court)

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MR ALBERT FALUYI (instructed by Nathaniel & Co, London, E8 4AA) appeared on behalf of the Applicant.
 
MR P SALES (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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J U D G M E N T

1.	MR JUSTICE SULLIVAN:This is an application for judicial review of a decision of the Chief Immigration Officer of 29th November 1999, refusing the applicant leave to enter the United Kingdom for one year for the purpose of embarking on a course of study, and granting only temporary admission into the United Kingdom.
2.	The applicant comes from Zimbabwe. He claims to have a legitimate expectation that he would be entitled to be granted leave to enter the United Kingdom on the basis of what he alleges he was told by someone he believed to be an entry clearance officer at the British High Commission in Harare. He also claims that it was irrational for the Chief Immigration Officer to decline to grant leave to enter.
3.	The applicant’s case is that he wanted to enter the United Kingdom to study computing at a private college, the Cosmopolitan College Limited. He had been accepted for a course at the college, which was due to commence on 4th January 2000. As a citizen of Zimbabwe, the applicant did not require a visa, or prior entry clearance, to come to the United Kingdom in order to seek entry as a student. He had an option: he could seek leave to enter in Zimbabwe or he could seek leave to enter from an immigration officer upon  arrival in this country.
4.	His college suggested that he apply in Zimbabwe. His uncle also suggested that he adopt that option because his uncle had had problems with another nephew who had been refused entry clearance on arrival in the United Kingdom. So the applicant decided to try to obtain entry clearance in Zimbabwe before leaving for the United Kingdom, in order to avoid any wasted expenditure and further difficulties.
5.	In his first affidavit, the applicant described what happened when he went to the British High Commission in Harare. He said this:
“I told an entry clearance officer whom I met that I wanted to come to the United Kingdom to study in the country. I showed the officer all the documents relating to my admission and the sponsorship of the course. The official at the British High Commission informed me that entry clearance for the purposes of study in the United Kingdom could not be proposed until 15th January 2000.
My documents were examined, I believe thoroughly, by the entry clearance officer in Zimbabwe. The entry clearance officer assured me that I should have no problems obtaining entry into the United Kingdom on arrival in the United Kingdom, and that there was no need for me to wait until the British High Commission in Zimbabwe could deal with my entry clearance application.” 
6.	The applicant was under the impression that the official to whom he had spoken was an entry clearance officer.
7.	In the light of a witness statement from Mr Brookes, who is the entry clearance officer at the  British High Commission in Harare, the applicant now accepts, in a recent statement, that the person he met (who was a woman) could not have been an entry clearance officer. His most recent statement says this:
“I met a woman at one of the counters at the public callers unit whom I thought to be the entry clearance officer. However, after reading the witness statement of Mr Brookes, I now realise I was wrong. I still insist that the lady advised that I would not have any problem gaining entry into the United Kingdom if I was sure that my papers are genuine. I also asked the lady what else I needed in addition to the documents I had provided. She replied that I needed money for living expenses. I asked her ‘how much do I need?’ She replied that I needed to have at least £300 with me when I arrived in the United Kingdom. I then took the application form for entry clearance, which I have duly completed, home with me because the lady said that the next visa processing section would be on 15th January 2000.”
8.	He was not satisfied with that response. He went back later, asked another official, and was told the same thing.
9.	He then contacted his uncle, who was studying in the United Kingdom, and his most recent statement says this:
“I told him what the lady at the British High Commission said. He told me that that was the same way he came to the United Kingdom, so there should not be a problem. I then proceeded to prepare for my journey.”
10.	In any event, when the applicant arrived in this country, he was refused leave to enter by the immigration officer at Heathrow. The immigration  officer was not satisfied that the applicant intended to leave the United Kingdom on completion of his studies.
11.	He was first interviewed briefly by a Mr Hanley, who formed the provisional view that he was not satisfied the applicant qualified for entry, and considered that he should be interviewed in more detail by another officer. That more detailed interview was conducted by Mr Jolly.
12.	It is plain from Mr Jolly’s witness statement, and from the contemporaneous notes of interview which he produces, that the matter was considered in some detail. In summary, Mr Jolly found that the applicant’s baggage contained no study materials and almost no clothing. There was little else apart from 20 kilogrammes of Sago powder. The applicant’s sponsor in the United Kingdom, his uncle, told Mr Jolly that the applicant had not studied computers before and the uncle did not know why the applicant wanted to undertake a computing course. The applicant had not worked since leaving school two years before, and had only studied to “O” level standard. The uncle, as sponsor, was uncertain as to who was funding the applicant’s study.
13.	The applicant was asked details about his experience. He said he had never studied computers  previously, had never operated a computer of any kind and really did not know anything about them. He had made no enquiries about studying in Zimbabwe or in any country nearer than the United Kingdom, and he did not know what qualification he would obtain on completion of the course.
14.	The applicant explained that his grandfather had offered to pay for the course. The grandfather had a small hardware shop but no computers. The applicant had not worked there, and there was no evidence about the financial status of the grandfather’s business. The applicant said that he had not studied for “A” levels because they were too difficult. The applicant was not carrying sufficient funds to maintain himself for the duration of the course.
15.	In the light of all the material before him, Mr Jolly considered that the applicant was more likely to be an economic migrant, who intended to remain in the United Kingdom by taking employment or relying on public funds and, therefore, that he was not likely to leave the United Kingdom on the completion of the proposed computing course. For that reason, leave to enter was refused.
16.	Pausing there, subject to the submissions in relation to legitimate expectation, it could not be said that Mr Jolly’s decision was irrational. Mr Faluyi submitted valiantly that it was. He submitted that the matter should have been looked at in the round, and consideration should have been given to the balance between the incentive to remain in this country and the incentive for the applicant to go back to Zimbabwe.
17.	In my judgment, it is plain that Mr Jolly did give most careful consideration to all of the relevant factors. In short, he looked at the matter in the round and it cannot be said that his decision is perverse. I should mention that Mr Faluyi has referred to the fact that the applicant has now taken some exams at the college and, apparently, he has been successful in those exams. So it is submitted that the immigration officer’s concerns about the applicant’s ability and/or inclination to complete the course may have been ill‑founded.
18.	That material was not, and could not by definition, have been before the immigration officer when the decision was made on 29th November 1999. So it cannot be used as a basis for challenging the reasonableness of that decision. It can, of course, be drawn to the respondents’ attention if it is decided to invite him to reconsider the decision in the light of fresh information. What the respondent makes of the fresh information will be a matter for his discretion.
19.	Against that background, I turn to what Mr Faluyi described as the central issue: was the applicant given an assurance or not?  In my view, that is not the central issue. It seems quite clear, on the evidence, that the applicant did go to the High Commission and that he was given some kind of assurance or words of comfort. The question is, precisely what form of assurance is it likely the applicant was given?
20.	Upon the applicant’s own case, he was told by the entry clearance officer that any formal application for entry clearance could not be dealt with in Zimbabwe until 15th January 2000. That, of course, was too late for his course, which began on 4th January 2000. So, as he makes clear in his most recent statement, he took away the application form for entry clearance. Thus, the applicant was being told in no uncertain terms that a formal application for entry clearance could not be considered, no doubt because of the pressure of work.
21.	Against that background, in my view, it is probable that the officer would have given some kind of assurance to the effect that the fact that the applicant had not been able to obtain entry clearance in Zimbabwe would not be a problem, in the sense that he could obtain such clearance upon arrival in the United Kingdom. Thus he would not be refused entry upon the basis that he had failed to obtain entry  clearance in Zimbabwe. He would be able to make out his case for entry clearance on arrival in this country, it would then be considered on its merits, and he would not be prejudiced by having failed to obtain entry clearance in advance.
22.	The applicant does not purport to remember the precise words used by the officer but, against the factual background that I have described, it seems likely that insofar as an assurance was given ‑‑ and there seems to be no reason to believe that the applicant did not receive some words of comfort ‑‑ an assurance of the kind that I have described might have been given.
23.	The fact that no more definite assurance was, or could sensibly have been, given in Harare is confirmed, in my judgment, by the fact that the applicant did not claim, when interviewed, that an assurance had been given to him. Mr Hanley and Mr Jolly produced their contemporaneous notes, both of them making perfectly clear that if they had been told by the applicant that he had been given an assurance, they would have recorded that statement in their notes and then set about investigating whether or not an assurance had been given, but they had no record of the applicant mentioning that matter.
24.	Mr Faluyi submits that is not conclusive because  the interview proceeded by way of question and answer. The applicant was not questioned about the matter, and so the relevant answer was not elicited. In my judgment, that does not meet the point. If the applicant had indeed been given such a clear assurance, it is very difficult to believe that he would not have mentioned it to the officers. Indeed, the applicant’s uncle was present and questions were asked of him. He did not suggest that it was his understanding that any clear assurance had been given to the applicant. He merely said that the applicant had enquired about seeking entry clearance from the High Commission in Harare, had been informed that the application could not be processed until after the beginning of the course, and (quite understandably) had therefore not wanted to wait until then to obtain entry clearance.
25.	Mr Brookes explains that since he is the only entry clearance officer in Harare, and thus the only person with the necessary authority to decide entry clearance applications, it is inherently unlikely that any other member of staff would give the kind of unqualified assurance which the applicant suggests was given.
26.	He explains in his witness statement that the staff in Harare are well aware of the fact that it is the immigration officer who decides whether or not  leave to enter is granted, and they are trained not to give any assurances in that respect. They are trained to explain that an applicant’s prospects of being granted leave to enter as a student are improved if prior entry clearance is obtained before travelling to the United Kingdom, but that if that is not possible then there should not be any difficulty, provided the immigration officer can be satisfied of a number of factors including, of course, that the applicant would leave the United Kingdom at the end of the proposed course of study.
27.	Thus, he doubts that any member of the British High Commission visa section staff would have given a bland and unqualified assurance of the type alleged by the applicant. Moreover, he thinks it unlikely that the documents would have been thoroughly examined. The applicant may have thought that they were, but given the pressure of work at the High Commission, the documents would only be thoroughly examined in the context of a formal application for entry clearance of which there is no record.
28.	Mr Brookes’ statement confirms my view of what is most likely to have been said to an applicant who had gone along to the High Commission hoping to be able to obtain entry clearance and then been disappointed to find that the matter could not be dealt with until  after his course had begun. No doubt he would have been given helpful words of comfort by the officer at the visa section, but, in the context that I have described, that comfort could have gone no further than an explanation that the applicant would not be prejudiced by not having obtained entry clearance in Zimbabwe since he would be able to apply for such clearance when he arrived in the United Kingdom. To that extent, and to that extent only, there would be “no problem”.
29.	It follows that, in my judgment, the central factual basis for the alleged legitimate expectation is not made out on the evidence. Strictly speaking, therefore, it is unnecessary to consider the submissions, made on behalf of the respondent by Mr Sales, as to the lawfulness of the decision even if such an assurance had been given.
30.	Mr Sales makes three points. Firstly, he submits that the assurance that is alleged by the applicant to have been made is not clear and unambiguous, i.e. the officer having made it plain that the application for entry clearance could not be considered until after the 15th January, what was said could not have amounted to a clear and unambiguous representation to the effect that entry clearance would be granted.
31.	Secondly, Mr Sales submits that on the evidence it  is inherently improbable that the applicant would have made full disclosure of all the relevant circumstances relating to his application to the officer in Harare. Mr Sales does not criticise the applicant. No doubt the applicant put forward such documents as he was able, but the applicant does no more than suggest that the officer looked at the documents. There is no suggestion that any kind of interview was conducted by the officer in Zimbabwe. Thus, plainly, whatever was said by the officer, was said against the background of an incomplete picture as to the applicant’s circumstances. The documentation would not deal, for example, with questions such as details of funding, or with the steps which the applicant had or had not taken to prepare himself for the course of study by obtaining prior qualifications or experience, matters of that kind. In the absence of full disclosure, it is submitted that the applicant could not rely on whatever assurance was given as creating a legitimate expectation even if what had been said was clear and unambiguous, which Mr Sales submits, on the applicant’s own case, it was not.
32.	The third point of law raised by Mr Sales is a point of principle of some importance. It is relatively easy for applicants for entry clearance to this country to make claims about oral assurances which  they say have been given to them by staff outside this country. Mr Sales submits that it was made clear to the applicant that the officer in Harare, whatever her status may have been, was not granting entry clearance, since she told the applicant, on the applicant’s own version of events, that his application could only be considered on 15th January 2000.
33.	In those circumstances, the statutory framework (see section 4.1 of the Immigration Act 1971) provides that in the absence of entry clearance having been granted in Zimbabwe, the decision as to whether leave to enter should be granted is one for the immigration officer to take. It would be unlawful for another officer to fetter that statutory discretion, which is conferred upon the immigration officer rather than any other official.
34.	It is submitted that in order for a legitimate expectation to arise, it has to be founded on some promise or policy statement or practice made by the relevant decision‑maker: see CCSU v Minister for Civil Service [1985] AC 374, the speech of Lord Diplock at page 408 letters D to H; R v IRC ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 per Bingham LJ (as he then was) at pages 1566A to C and 1569H.
35.	It is submitted that a legitimate expectation  cannot be founded upon a representation or assurance given by someone other than the relevant, authorised decision‑maker. This limitation upon the ambit of a legitimate expectation reflects the basis of the doctrine, i.e. the decision‑maker’s duty of fairness, and considerations of abuse of power by the decision‑maker: see R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622, paragraphs 79 to 81. It also reflects the principle that the courts will not unduly trammel the executive’s policy‑making powers: see Coughlan paragraph 82.
36.	Against that background, it is submitted that it would be wrong in principle for courts to rule that a decision‑maker’s discretion should be limited by an assurance given by some other person. I entirely accept the validity of that argument in principle. Its application to the circumstances of a particular case may be problematical in cases, for example, where one official may appear to have the necessary authority, or may indeed hold himself or herself out to have the necessary authority.
37.	That issue was addressed in Western Fish Products Limited v Penwith DC [1981] 2 All ER 204. The applicant relied upon certain assurances that were said to have been given by a planning officer. It is only necessary to read the second holding. The Court of  Appeal decided as follows:
“In any event, an estoppel could not be raised to prevent a statutory body exercising its statutory discretion or performing its statutory duty, and therefore, even if the council’s officers while acting in the apparent scope of their authority had purported to determine the plaintiff’s planning applications in advance, that was not binding on the council because it alone had power under the 1971 Act to determine the applications. Furthermore, although a planning authority might be bound by the decisions of an officer if the power to decide the particular matter had been, or appeared to be, delegated to the officer, for an estoppel to arise in such circumstances there had to be some evidence, over and above the mere fact of the officer’s position, on which the applicant was justified in thinking that the officer’s statements would bind the council. Since there was nothing, apart from the position held by the planning officer, on which the plaintiffs could have assumed that the officer could bind the council, the council was not estopped by anything the planning officer had said from refusing the plaintiffs’ applications for planning consent.”
38.	Western Fish was, of course, concerned with the question of estoppel rather than legitimate expectation, but it is fair to draw an analogy, at least for purposes of the present case. The applicant may well have been mistaken as to the authority of the official with whom he dealt in Harare. He mistakenly assumed that she was an entry clearance officer, but the mistake was his own. On the evidence, it was not contributed to in any way by the High Commission. The High Commission were not holding out the officer as an entry clearance officer. In the words of the holding in the Western Fish case, there is no evidence, over and above the mere fact that the official was in place  in Zimbabwe, on which the applicant was justified in concluding that she could give any kind of binding assurance as to what might happen in this country. Thus, in my judgment, even if a clearer and less ambiguous assurance had been given, the applicant could not have relied on that assurance so as to, in effect, fetter the discretion which is conferred by the statute upon the immigration officer.
39.	This case may be contrasted with the decision of the Court of Appeal in Oloniluyi v Secretary of State for the Home Department [1989] Imm AR 135. In that case, the applicant was a Nigerian citizen who had been admitted to the United Kingdom as a visitor. She asked for a variation of leave to enable her to remain as a student. While her application was under consideration she visited Lunar House because she wanted to go home to Nigeria for Christmas. She was assured by an official at Lunar House that she would have no difficulty in returning to the United Kingdom. When she came back to the United Kingdom she was refused leave to enter, the immigration officer not being satisfied that she was a genuine student. In essence, the Court of Appeal concluded that she had been given a legitimate expectation that when she returned from holiday in Nigeria she would be admitted without difficulty and, in those circumstances, the refusal of  leave to enter was unfair.
40.	But that was expressly upon the basis that the official who gave the assurance at Lunar House had power to give an assurance of that kind. As Dillon LJ put it between pages 144 and 145:
“Regulation 10 of HC 169 recognises that foreign nationals may well wish to ascertain in advance whether they are eligible for admission to the United Kingdom and the obvious place to go to, to ascertain that, in the case of a foreign national who is already in this country and is merely contemplating a short trip abroad to be followed by return to this country, is Lunar House. That would‑be visitors should be able to know in advance whether they are likely to be admitted is conducive to the smooth operation of an immigration service, and for my part I would hold that the official at Lunar House had power to give some assurance to the appellant.”
41.	Given the structure of the 1971 Act, the official in Harare had no power to bind the immigration officer to reach any particular decision, absent a formal decision upon an application for entry clearance in Harare. For all of these reasons, this application must be dismissed.
42.	MR P SALES:  My Lord, I have no application to make.
43.	MR FALUYI:  My Lord, I am grateful. I am legally aided, my Lord.
44.	MR JUSTICE SULLIVAN:  So you want detailed assessment or whatever we call it nowadays. Yes.
45.	MR FALUYI:  I am grateful, my Lord.
46.	MR JUSTICE SULLIVAN:  Thank you very much.
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