England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 November 2007

1. MR JUSTICE CHARLES: I have before me an application for judicial review in respect of which permission was given by Leveson J. I shall come back to that in setting out the background events by reference to a chronology.
2. The claimant was born in 1959 in Nigeria. He came to this country in the year 2000. After he had been here for a short period of time, pursuant to, first of all, permission as a visitor and then, as I understand it, an extension of leave as a community service volunteer, he was employed as a full-time science teacher at the Walworth School. In the context of that contract of employment, he was granted a work permit for a five-year period, which expired or would have expired on 29 October 2006. The application for the work permit and the work permit itself make it clear that it was applied for and granted on that basis.
3. In January 2002, the claimant's wife joined him in this country. In March 2002, he received a letter from his employers (the school) informing him that they would be terminating his employment at the end of that school year. That letter, as is accepted by the Secretary of State, is in complementary terms so far as the performance of the claimant is concerned in his teaching activities, and the views expressed of the claimant in that letter in complementary terms are reflected by the fact that, following the termination of his engagement as a full-time teacher, he has worked fairly regularly over the years as a part-time teacher for that school.
4. The position, however, is clear that, as at that stage and certainly at the end of the school year and the beginning of the next school year in the autumn of 2002, the claimant was aware that the basis upon which he had applied for and been granted a work permit had ended, even if ended by breach of contract by the school, as to which I can say nothing because I do not know whether or not what they did would have amounted to a breach of contract. The fact of the matter is that that employment was brought to an end. There were no proceedings, for example in the Employment Tribunal, for reinstatement. In that context, it is clear that this claimant is an intelligent man, and in a statement he has put in and which I have seen today, he makes it clear that he made a conscious decision as to whether or not he should apply for a work permit as a supply teacher with the Walworth School, and for reasons he sets out there, decided not to do so because he was anxious that if he were to make that application it would not be granted. As he says, that anxiousness was proved ultimately to be correct or likely to be correct by the decision made by the Secretary of State later in the history.
5. After that, his then three children joined him and his wife in December 2003. Earlier than that, he had enrolled on a course relating to internet and multi-media engineering. The fourth child joined the family in England in 2004, and in February 2005, the claimant made his first application for indefinite leave to remain. That was made under Rule 134 and as an exercise of discretion. That application was refused. The bundle only contains the letter enclosing the notification, but I have been informed by the Department, and accept, that, in broad terms, the refusal was simply on the basis that the application had been made too soon, the relevant period had not passed, and in the context of that application, the point was not picked up and/or notified to the claimant that he was not complying with the terms of his existing work permit.
6. I should say that, in that application, there was openness on behalf of the claimant in setting out the history. In that he made it plain that his employment had been terminated and he was acting as a supply teacher and had been carrying out certain studies. I should mention that, in July of 2005, he graduated as an internet multi-media engineer, and in December 2005 the Walworth School wrote a letter indicating that from time to time the claimant would still be needed at the school and would be used by the school as a supply teacher.
7. In January 2006, he applied again for indefinite leave to remain. Again, he based that application under the Immigration Rules and also, in the alternative, on the exercise of discretion. That application was refused by a letter dated 27 March 2006, and I should pause for a moment to indicate that that notice sets out, as was the case, that the application had been made through the solicitors who presently act for the claimant and have acted for him, as I understand it, throughout. That notification contains the following sentence:

"The decision has also been made to curtail your leave so that it expires on the date shown at the end of this notice."

8. Then in bold type at the end of the notice is the following:

"You still have leave to remain where your current conditions continue to apply until 23 April 2006. Please ensure that you understand the conditions of your stay."

9. The letter enclosing that notice contains a note at the bottom that four Nigerian passports and supporting documents were returned with the notice. As I understand it, and on what I have been told, it appears likely that the four Nigerian passports referred to are those of the parents and two of the children, the two older children's passports not having been sent, they having at that stage attained the age of 18 years and their passports being dealt with separately, and the youngest child not then having been born. That, I think, explains why there were four passports, but little probably turns on this at this stage.
10. The point that has been raised in argument is that there is a handwritten entry on the passports on the page dealing with the leave to remain to the effect that it expires on 23 March 2006. That is not stamped in any way. The position of the claimant is that the person who wrote that on the passports was an officer of the Department. I shall return to that entry because it is part of the argument relating to one aspect of this challenge.
11. Very shortly after the decision was made, these proceedings were launched. They were launched in April and they were also accompanied by a letter from the claimant raising various matters, in particular matters pertinent to his family life in this country. In granting leave, Leveson J said this:

"Although I do not consider that any argument based on Article 8 is likely to succeed, I am just prepared to accept that it is arguable that the change in the applicant's status (from full-time to supply teacher) although outside the rules should have been considered against the background of his continued employment in science teaching throughout the period (albeit that the contractual arrangements have changed for reasons associated with the internal organisation of the school) so as to render the decision Wednesbury unreasonable."

12. Wednesbury unreasonable is a composite description, and certainly the introduction in those observations indicates that Leveson J may have had in mind then that there was a failure to take into account a relevant factor, which is a starting point of Wednesbury unreasonableness, but he may also have had in mind that the decision itself, having taken account of all relevant factors, was outside the range open to the decision-maker.
13. Following that, there was an application for leave to amend the grounds. The grounds were amended and were accompanied by a skeleton argument setting out headings of attack, the first heading being "unreasonableness"; the second being "failure to exercise discretion"; the third being "human rights". Additionally, grounds were raised by reference to a failure to notify the claimant that he was entitled to appeal the decision.
14. In the light of all that, the Secretary of State took the decision to deal with the matter again, and wrote a further letter dated 29 May 2007 in which the Secretary of State sets out the points then being raised as follows:

"1. He comes within paragraph 134 of the Immigration Rules for the grant of indefinite leave to remain, and the decision is Wednesbury unreasonable.

2. Even outside the rules various compassionate factors have not been considered, and the decision is a breach of Article 8.

3. He is entitled to an appeal against curtailment of his leave to 23 March 2006.

4. The failure to notify him of his right of appeal is a breach of his human rights and his rights to a fair hearing."

15. The letter then reaches a conclusion by reference to the Immigration Rules that the application is bound to fail, and that is no longer pursued. I simply record that, for the reasons in the letter, to my mind it is clear that that part of the application was bound to fail. The rules simply do not apply to this claimant.
16. It then deals with the matters raised by the claimant, and then this paragraph followed:

"It is considered that these factors are not sufficient to outweigh the interest in immigration control which your client would have respected had he sought a change in his work permit when his conditions of employment changed on 1 September 2002."

17. And then it makes effectively the same point in respect of the claimant's Article 8 rights, and then so far as the appeal point is concerned, it says:

"[The claimant's] leave was curtailed by the decision of 27 March, but since his leave was due to expire on 23 April, there was extant leave which lasted beyond the date of the decision. Accordingly there is no right of appeal against the decision pursuant to section 82 ... [and there should then be a reference to sub-section 2(d) or (e) of the 2002 Act]. The stamp in your client's passport, if it stated the date of 23 March 2006, was incorrect."

18. In opening the case this morning, counsel for the claimant indicated that there were essentially four parts to his submissions: the first was that discretion had not been properly exercised or not exercised at all; then reasonableness; then human rights; and then the appeal point.
19. Before going to those arguments, I should mention some other matters. Placed before the court was a supplemental bundle which indicated that the claimant has made a further application for a work permit. That is something which the Secretary of State had invited the claimant to do following the letter in May when the Secretary of State had invited the claimant to abandon this judicial review. "Inviting" is probably putting it too high. The letter pointed out that the claimant could make a further application for a work permit if so advised. That application was made shortly before today's hearing and was refused by a letter of 27 October 2007. The letter explains that the basis upon which the claimant could seek a work permit would be by enrolment on the graduate teacher programme, which is an employment-based route to obtaining qualified teacher status. As I understand it, and indeed unsurprisingly, that programme has a practical working element and a theoretical element to it. My reading of the form and the dates of the documentation, and the explanation provided to me by the parties after there had been a short adjournment, is to the effect that when the application was made all of the relevant factors were not in place: for example, there is a letter from the Essex County Council indicating, as I understand it, funding for the claimant on the graduate teacher programme, which post-dates the application. But what is envisaged is that, in line with the suggestion in the refusal letter, the claimant is still in a position to make and will make a further application on the basis that he has been successful in obtaining a place on the graduate teacher programme at a school and has embarked upon that programme for the purposes of obtaining qualified teacher status.
20. I would urge upon him and those who advise him that, if they do make that further application, that they make sure that the relevant application contains all of the relevant particulars in a clear form to inform the decision-maker at the other end what it is they are being invited to do. It seemed to me that the earlier form perhaps did not do that as well as it might have done.
21. In that context, I should also record that the Secretary of State has made it clear to me, by reference to paragraph 6 of a statement put in on behalf of the Secretary of State by a Mr Critchlow (who explains the workings of the work permits scheme or system) that should the claimant be successful in obtaining that work permit, he would also have to make a separate application for leave to remain. The point has been made, lest it be said that any contraindication arose from the present proceedings, that in the consideration of that application, the fact that the claimant did not inform the relevant Department of the change in his employment status, and therefore of the fact that he was not complying with the underlying premise of his first work permit, is something that might well be taken into account and might well lead to the Secretary of State, through the relevant officers, refusing that leave to remain. I record that because it was drawn specifically to my attention as a clear marker to be put down for future.
22. I return to the issues in this judicial review, which now focus, and focus only, upon the decision of the Secretary of State not to grant indefinite leave to remain as a matter of discretion. It is now accepted that the matter falls outside the relevant Immigration Rules. In that context, I should also record that, having advanced arguments based on Article 8 in the morning, after the lunch time adjournment counsel for the claimant made it clear that he was no longer seeking to rely on those arguments in the context of this review. The genesis of that conclusion was certainly, in part, discussions that took place during the course of the morning which led to the position being adopted that the claimant and other members of his family would be able to raise human rights arguments and, in particular, Article 8 arguments in response to decisions, as and when they were made in the future, to remove one or more of them from the United Kingdom. That, it seems to me, is correct, and particularly so in the context of these proceedings. It seems to me understandable and sensible to set the human rights arguments on one side on the basis that they would be advanced both in respect of any decision that might be made after the grant of a work permit refusing leave to remain, and any decision relating to removal directions. That is another marker which has to be put down in the opposite direction because the stance being adopted by the claimant here, and essentially, in my judgment, sensibly acceded to by the Secretary of State, is that it means that the Secretary of State cannot raise arguments by reference to abuse or revisiting the same territory should the issue be raised in the future in judicial review proceedings.
23. It does seem to me that that is sensible because, in my view, it is not easy in this context, and that is the context of the decision last March or the decision in May, to factor in all the competing issues relating to the family as a whole. So the more sensible and convenient course is to deal with those in the context of any removal direction that is made. Those advising the claimant will have to take their own views as to how those issues are dealt with in respect of any decision on leave to remain, as indeed will the Secretary of State and those advising the Secretary of State.
24. I think that finally does bring me back to the issues that are argued in the context of the relevant decision in this judicial review, and that is the March 2006 decision. That issue, to my mind, in the context of the arguments based on discretion and reasonableness (and I would add also it would seem to me the human rights arguments if they had been persisted in) was to see whether or not that decision was attackable on the basis that relevant factors had not been taken into account, or on the basis that it fell outside the range of decisions open to the Secretary of State.
25. To my mind, as I put fairly early on this morning to counsel for the claimant, whatever the position may have been in the context of the March letter itself (and I have not forgotten that points were advanced in respect of the children's application which could found an argument that the decision-maker was not focusing accurately on issues) it has to be remembered that, as is not uncommon in proceedings of this sort, the Secretary of State has issued a further decision. That decision, it seems to me, makes it effectively unarguable that the Secretary of State has not exercised discretion. It makes it unarguable that the Secretary of State has not taken into account, for example, the point made by Leveson J in his observations, or indeed any of the points raised in the judicial review proceedings because they are accurately listed in that letter.
26. Is therefore the Secretary of State's decision outside the range of decisions open to the Secretary of State? Again, it seems to me that the claimant and his counsel were facing an impossible task this morning to establish that this was arguable. The test simply is not one that others may have reached a different decision, for example having regard to the stated position of the Government concerning those with skills in information technology, to which I was taken by counsel for the claimant. The position here is, as is set out in the May letter, that the claimant had not complied with the terms that underlay the grant of his work permit. The change was through no fault of his own, but, as I have said, he made a conscious decision not to draw that to the attention of the relevant department. Given that point and the rationale of the work permits regime, it is to my mind impossible to assert that the decision of the Secretary of State is outside the range of decisions open to the Secretary of State.
27. I repeat that the Article 8 points are now left on one side, but the argument that they were simply not taken into account was also doomed given the May 2007 letter.
28. I therefore turn to the remaining point relating to failure to give notice that the claimant was entitled to appeal. Looking at this firstly in the context of the March letter, here the claimant seeks to rely on the entries in the passports. However, it seems to me, albeit that it is why it was advanced, that this is not a sound foundation for the relevant argument because the relevant argument has to turn on the dating of the curtailment of leave, and that, it seems to me, appears quite clearly and indeed in bold on the face of the relevant letter which sets the date at 23 April 2006. If one takes that date, the only two available routes of appeal suggested were under sections 82(2)(d) and (e), and the reality is it is only (e) that is relevant because there was no refusal to vary inside (d). Section 82(2)(e) reads:

"(2) In this Part 'immigration decision' means—

...

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain..."

29. The argument that was put, other than the factual one I have already dealt with, was that, on its true construction, the phrase "when the variation takes effect" should be read as being the 23 April 2006, and therefore as at that date there was no leave to enter or remain and therefore the right of appeal is triggered.
30. I am satisfied, having heard argument on behalf of the Secretary of State, that that is not the correct construction and interpretation of that provision because the phrase "when the variation takes effect" must be when the variation is notified in the context of that section and thus when the letter of 27 March was sent, or alternatively when the relevant underlying decision was made, and for these purposes nothing turns on that. One can test it by taking totally different dates, and let us assume that a different date had been put in that letter much nearer the October date. It seems to me that one has to interpret that sub-section as referring to the date when the variation takes effect, ie the date when it is known that the claimant no longer has permission to remain here until October 2006, and that the permission expires on an earlier date.
31. Largely at my own instigation a further argument was introduced on the basis that if reliance could not be placed on the March letter and one had to place reliance on the May letter, would there then be a failure to notify a right of appeal? It seems to me that I raised a false point for two reasons. Firstly, if that is the date, again the sub-sections do not apply to the factual background because by that stage any leave that the claimant had would have long since expired. Alternatively, and in any event, it seems to me that the issue relating to appeal is one focused on the March letter, rather than the May letter. The May letter is not seeking to save matters in that context; it only would save matters in the context of a failure to properly exercise a discretion. So on both grounds it seems to me that the point I instigated is a false one.
32. That deals with the challenges made to the decision in this case, and it leads to me determining that this application should be refused.
33. In the context of the history, I raised with counsel whether or not the Secretary of State was in a position to say whether or not a decision to remove would be made pending the application for a further work permit and its determination, and should that be successful, of the application needed for leave to remain. Counsel for the Secretary of State was not in a position to offer any undertakings so far as that was concerned. That is to my mind understandable because the decision-makers would not have had a relevant period of time to consider the issue.
34. I have decided that the appropriate way to deal with that is not simply by giving indications in this judgment. It seems to me that if a decision to remove was to be made during that period, the judge dealing with urgent applications might well see fit to grant an injunction to prevent removal. Also, the practice of the Secretary of State would mean that if judicial review proceedings were launched in the context of such proceedings, then any removal would be stayed for a period. I think that the practical course is for me to do what I said to counsel for the Secretary of State I might do and that is to indicate that my dismissal of this application is to take effect on 15 January when the order is then to be drawn. That will have given everybody time to, if I can put it this way, put their ducks in a correct row, and after that decisions will have to be made by all involved in the light of the circumstances that then exist. So what I propose to do is to dismiss this application, direct that that dismissal is to take effect on 15 January next year, and that the order is to be drawn bearing that date and is to lie in the office until that date.
35. Is there any other application?
36. MR JIBOWU: No, my Lord.
37. MR JUSTICE CHARLES: No applications for costs? They will lie where they lie.
38. MR SACHDEVA: My Lord, there are no applications for costs.
39. MR JUSTICE CHARLES: I will leave that where it lies. I would urge you and the claimant and the solicitors that instruct you to make sure that you do get the next form completely correct and clear.
40. MR JIBOWU: Yes, your Lordship.