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
		1st December 2008

1. THE DEPUTY JUDGE: On 21st September 2006, the claimant arrived in the UK with leave to enter as a student. He had enrolled on a BA honours course at Bournemouth University. On 3rd September 2008 he was arrested whilst at his place of work and detained at Bournemouth police station as immigration officers had reason to believe that he had been working in excess of the condition of his leave to enter in respect of work. Unfortunately we do not have with the court papers the document referring to his leave to enter but we do have a copy of his passport which says "work (and any changes) must be authorised". In fact, it is accepted that any leave which had been granted him would have been subject to the immigration rule under which it had been pursued and given, namely rule 57.
2. The pertinent part of rule 57 provides as follows:

"57(v) does not intend to engage in business or to take employment, except part-time or vacation work undertaken with the consent of the Secretary of State for Employment."

This provision of the Rules is further qualified by guidance which is provided to those taking these decisions in what is known as the Immigration Directorate Instructions. Those provide as follows:

"Students should not work for more than 20 hours a week during term time ... They may work full time during their vacation period and during the additional period of 2 or 4 months following completion of their studies whilst, for example, waiting for their examination results..."

3. This, by common consent, was the effect of the condition which it is said that the claimant was in breach of. The breach was put in issue by a letter of 4th September 2008 from the claimant's solicitors and it remains an issue. At the time of the grounds being provided for this claim, the claimant also said in paragraph 21 of the grounds for review:

"21. The claimant submits that the Secretary of State's decision to remove him in the circumstances of this case amounts to an infringement of his rights under Article 8 of the ECHR."

4. The notice issued by the immigration officer at page 24 of the bundle, dated 2nd September 2008, was made under the provisions of section 10 of the Immigration and Asylum Act 1999. The removal directions, at page 16 of the bundle, note that that decision is not an appealable decision. In the event, whether or not it is an appealable decision is not the issue in this case. The issue is whether this claimant has an in-country right of appeal which suspends the process to remove him or whether his right of appeal can only be exercised from abroad after he has been removed from the UK.
5. The relevant provisions of section 10 of the 1999 Act are as follows:

"10(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

...

(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.

6. Rights of appeal against such decisions are dealt with by section 82 of the Nationality, Immigration and Asylum Act 2002. The purpose of section 82 is to define immigration decisions against which a person has a right of appeal. In this case it is section 82(2)(e) and (g) which of importance:

"82(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(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,

...

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999."

7. There is then the question of the place from which such an appeal can be exercised. This is governed by section 92 of the 2002 Act. So far as relevant to this case, section 92 provides as follows:

"92(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2) This section applies to an appeal against an immigration decision of the kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j).

...

(4) This section also applies to an appeal against an immigration decision if the appellant—

(a) has made an asylum claim, or a human rights claim, while in the United Kingdom..."

8. The claimant says that he was entitled to work in excess of 20 hours at the time when he was doing so because his formal instruction at the university had ceased apart from a week where he had to attend to undertake exams. Thus, he says, whilst he was working more than 20 hours that was within the rules. On his behalf it is submitted that, by virtue of reading section 10(8) together with section 82(2), this immigration decision is within both (e) and (g). Under section 82(2)(e) the claimant has an in-country right of appeal which he ought to be allowed to exercise and which should suspend the process of his removal. This submission is supported by the language of paragraphs 322 and 323 of the Immigration Rules which deal with the curtailing of a person's leave and describe as a ground for doing so the failure to comply with a condition of leave to enter. This language, it is submitted, supports the construction that the effect of what the immigration officer did was at one and the same time a decision under section 82(2)(e) and (g).
9. This is not a novel submission in the sense that it is supported by a recent decision of the Asylum and Immigration Tribunal in the case of CD. In that case, which related to a person remaining in the United Kingdom in breach of a condition of their leave to enter who was served with papers seeking his removal under section 10 of the 1999 Act, the Senior Immigration Judge who considered the case provided as follows in his determination:

"22. If a person has never had any leave to enter or remain in the United Kingdom, or has no such leave at the date of the immigration decision in question, there is plainly a policy justification for limiting that person's right of appeal, in the way provided in section 92 of the 2002 Act. If, however, a person does have such leave, the position would seem to be otherwise, else the variation of a person's leave to enter or remain, so that leave is curtailed, would not sensibly sit within section 92(2). Where, on the very same facts as could give rise to a decision to curtail, the respondent instead decides to invoke section 10 of the 1999 Act, with precisely the same effect in practice, so far as the person in question is concerned, in that his current leave is brought to an end by operation of section 10(8), it is very hard to see how Parliament could have intended that person to be deprived of an in-country right of appeal. The fact that such a person might, in the absence of an in-country right of appeal, be able to apply for judicial review against the decision of the respondent to remove him from the United Kingdom is in no sense an answer. The fact that section 10(8) of the 1999 Act uses the word 'invalidates', in relation to any extant leave, does not preclude the immigration decision from falling within section 82(2)(e), as well as section 82(2)(g). If the position is equivocal, then as the Tribunal has said in GO (Right of appeal: ss 89 and 92) Nigeria [2008] UKAIT 00025, any ambiguity in provisions dealing with rights of appeal should be resolved by a construction that would preserve rather than remove those rights."

10. Thus it is that Mr Raw on behalf of the claimant adopts and submits the approach of the Senior Immigration Judge in the case of CD as justifying his contention that this immigration decision is capable of falling within both 82(2)(e) and (g) and therefore enabling the appellant to have an election of an in-country right of appeal. Furthermore, it is submitted that the effect of section 92(4) is that all that the claimant would need to do, as he has in this case, is to raise a human rights claim and he obtains an in-country right of appeal by virtue of that provision.
11. In response, the defendant contends that it was clear that the condition was broken and that the invocation in those circumstances of section 10 of the 1999 Act was entirely appropriate. It is submitted on behalf of the defendant that section 82(2)(e) and (g) are mutually exclusive. In effect, the immigration officer has a choice of deploying either section 10 and the provisions of administrative removal or taking a longer route, reporting the matter to the Secretary of State and the Secretary of State determining whether to take action applying the provisions of the rules to which I have already referred. If the matter was determined by taking action under the rules, then it is accepted that that would be an immigration decision caught by section 82(2)(e) giving rise to an in-country right of appeal. By contrast, it is submitted, if section 10 is used, then it can only be an out-of-country appeal by virtue of the clear provisions of section 82(2)(g) and section 92(2).
12. To assist in that argument, reference was made to the Court of Appeal case of Lim v Secretary of State for the Home Department [2007] EWCA Civ 773. That was a case also concerning a breach of condition on leave to enter where enforcement action was taken under section 10. There was a preliminary issue before the Court of Appeal to consider whether the underlying facts in a challenge to the exercise of the power under section 10 were precedent facts for the court to determine and also whether the existence of the out-of-country right of appeal was adequate to exclude a case from an application for judicial review as an exercise of the court's discretion.
13. Having referred to the decision of the House of Lords in Khawaja v Home Secretary [1984] 1 AC 74, the leading judgment given by Sedley LJ turned to the consideration of the second issue, namely whether the out-of-country right of appeal was such as to exclude judicial review:

"19. It is plain, in my judgment, that there are some material facts upon which the application of s.10 depends and which it cannot be for an immigration officer, subject only to an out-of-country appeal, to decide. The section permits removal only of 'a person who is not a British citizen'. If the person whom it proposed to remove claims to be a British citizen, there can be no doubt that he or she has an immediate right of recourse to the High Court to prevent removal. I am entirely unable to accept the Home Secretary's contention that an individual whose claim to be a British citizen is disbelieved by an immigration officer must accept removal to a country where he may have neither work nor family nor accommodation and conduct an appeal from there in which, by virtue of s.3(8) of the Immigration Act 1971, the onus lies on him to prove citizenship. The same, in my opinion, must be the case where identity is in issue: if the person whom it is proposed to remove denies being the person it is intended to remove, the High Court must have an unfettered power to decide the question. Both classes of issue, in my judgment, rank as precedent fact.

20. Is the non-observance of a condition of leave to remain in the same class? It differs from citizenship and identity in that it is expressed in s.10 as a condition, rather than a precondition, of removal. But I do not think that this can count for a great deal: the drafter might just as easily have put the conditions the other way round, predicating the provision for removal on a breach of condition but requiring in addition the absence of British citizenship. A greater difficulty is that if Mr de Mello is right, every element of s.10 is a matter of precedent fact – not only identity and nationality but non-observance of a condition, overstaying, deception, revocation of indefinite leave and family membership. Even so, one has to ask: why not? Many of these issues are, or may involve questions which are, entirely apt for determination in a court of law: whether a revocation of leave was lawful, for example, or whether what was done amounted to deception, or whether a person 'belongs' to the family of someone who is to be removed.

21. This said, some s.10 issues, among them whether a foreign catering worker was working in the wrong restaurant, will be pure questions of fact. If Mr de Mello is to succeed on his fundamental argument, therefore, he has to establish that everything which s.10 lays down as making removal permissible is justiciable without regard to the s.84 appeal mechanism. I do not think that it is possible to do this without disregarding the manifest purpose of s.82 of the 2002 Act, since the effect would be that the right of appeal had effect only where the individual concerned chose not to raise his or her challenge by way of judicial review.

22. The only coherent solution, it seems to me, is to continue to regard every question arising under s.10 as in principle both appealable and reviewable (see Swati, above, at 485G), but to calibrate the use of judicial review, through the exercise of judicial discretion, to the nature of the issue or issues. In this way – and, so far as I can see, in no other way – the High Court can remain loyal to what was decided in Khawaja by consistently retaining jurisdiction to determine the existence of preconditions of liability to removal, as well as other questions of law apt for the High Court's determination, but can also respect the policy of s.82 by declining to entertain challenges on issues more apt for the appeal mechanism, whatever its hardships.

...

27. It seems to me inescapable that the judge was influenced – as anyone of common sense and humanity would be – by the colossal overreaction to what, even if proved, was a venial breach of condition. By at least keeping the issue in-country he was doing something to mitigate it. But, while I am in entire sympathy with his motive, I cannot find anything in his reasons sufficient to support his conclusion. This was precisely the kind of issue for which the legislation, for better or for worse, prescribed an out-of-country appeal."

That latter paragraph reflects the fact that the judge at first instance had regarded the circumstances of the breach as being exceptional so as to allow the court in the exercise of its discretion to admit the case to judicial review. It is clear from what Sedley LJ observed that, whatever the hardship, the proper approach was to look to the framework prescribed by the legislation.

14. On that basis, it is submitted by Mr Edwards on behalf of the defendant that the strict approach to the construction of section 82 must be maintained and that, in the event, CD was therefore wrongly decided. So far as section 92(4) is concerned, he submits that the simple assertion which I have quoted above from the proceedings is not sufficient to amount to a claim so as to engage the provisions of section 92(4).
15. In my judgment, it is clear from the case of Lim that, in cases where section 10 is invoked upon a breach of condition on leave to enter, then an out-of-country right of appeal is to be regarded as adequate consistent with the framework of the legislation so as to exclude as a matter of discretion the claimant from entitlement to a claim for judicial review. Thus the issue in this case is whether or not this claimant has an in-country right of appeal pursuant to section 82(2)(e) with its suspensive effect or whether or not section 82(2)(e) and (g) are mutually exclusive such that he cannot have an election between those two provisions but his case is, and only is, an immigration decision under section 82(2)(g).
16. In my judgment it is clear that section 82(2)(e) and (g) cannot simultaneously apply to a case of this sort and I accept the submission that they are mutually exclusive. I do so for the following reasons. Firstly, section 92(2) clearly differentiates between the two categories of immigration decision by providing one with an in-country right of appeal and the other with an out-of-country right of appeal. There is nothing in the legislative framework to suggest that an immigration decision of this kind can be both at the same time or that there is any right of election to the recipient of such a decision as to elect between different forums for appeal.
17. Secondly, Parliament clearly intended that when section 10 of the 1999 Act, the provisions in relation to administrative removal, were exercised then there would only be an out-of-country right of appeal and to conclude otherwise would be to render redundant the clear differentiation which is obviously effected by section 92(2) by including within its operations decisions under section 82(2)(e) and excluding those, by their admission from the list, under section 82(2)(g).
18. Thirdly, to my mind the construction which depends upon the use of language from the immigration rules can potentially lead one astray. One has to start, in considering questions of this sort, with the words of the statute, not the material from administrative policy which is at the very least subsidiary to the statutory language. It is clear that in this case the immigration officer, as I have set out above in the submissions of Mr Edwards, has a choice when presented with a person who has found themselves in breach of conditions on their leave to enter. The choice will have consequences in relation to the forum where an appeal will arise. That that is the case (as Sedley LJ says, for better of worse) is clear from the framework of the legislation which I have described and nothing in the language of the immigration rules can detract from that clear statutory framework.
19. Fourthly, whilst I accept that the Court of Appeal in Lim was not dealing directly, as Mr Raw rightly submits, with the issue before me, namely whether or not an immigration decision can simultaneously be within section 82(2)(e) and (g), nevertheless it seems to me clear that the construction of the legislation which I have set out is clearly supported by the approach taken by the Court of Appeal in that case. However harsh that may seem in individual cases, that is the consequence of the Parliamentary drafting and it is only Parliament that can undo it.
20. Those reasons and conclusions dispose of the matter so far as section 82(2)(e) and (g) are concerned, which is the only matter on which the claimant had permission to apply for judicial review.
21. There was, however, discussion in the course of argument about the status of the mention of Article 8 in the claimant's grounds in respect of this application. The question posed was whether the mere mention of human rights at the stage of these grounds being lodged was sufficient to engage section 92(4) and provide the appellant with an in-country right of appeal. In my judgment it cannot. What is set out in the grounds is simply a bald assertion. It was then and has remained wholly unparticularised and unexplained. In those circumstances, in my judgment it cannot amount to a claim so as to engage the provisions of section 92(4) and afford the claimant an in-country right of appeal.
22. It follows from my conclusions that this claim must fail and I enter judgment for the defendant.
23. MR EDWARDS: My Lord, I am grateful for that and also I should perhaps just thank the court for having dealt with this claim so expeditiously. The grounds were issued, I think -- in three months we have gone from the issue of the claim to judgment and that is, alas, increasingly unusual, so I would want to record my client's gratitude for that.
24. We are not seeking costs in this case. There would have to have been a case such as this and it happens to be the claimant's, so we do not seek costs. However, we do seek that your Lordship's judgment is published urbe et orbe like my predecessor before you and so we would seek a transcript and that it be expedited.
25. THE DEPUTY JUDGE: Everybody seems content with that and I see no reason why not.
26. MR RAW: I am very grateful for my learned friend's kind words in not seeking cost, particularly as he put in his skeleton argument at paragraph 3 "at one level, the issue is arcane" and it troubled your Lordship for a whole day, this matter, and, as he puts out there, it can go one way or the other.
27. THE DEPUTY JUDGE: Most cases can, in my experience, go one way or the other.
28. MR RAW: Well, but that is why we have put that, this is arcane, in this particular matter.
29. My Lord, it is a case which, when it came before HHJ Inglis and I was seeking permission to seek judicial review of this particular matter -- that my learned friend said it was a very important case as far as the respondent was concerned because, if the claimant were to be right -- he is found not to be right but he said then back in September -- it put a coach and horses through the legislation. What I would seek --
30. THE DEPUTY JUDGE: Well, I accused him of jury points during the course of argument and I fear that may have fallen foul of the same objection but I understand the point you make. You make that point that even on the defendant's side it was thought to be a case of a little importance.
31. MR RAW: So I wonder, my Lord, depending on those who instruct me, what they feel about this particular matter, whether you would give permission to appeal.
32. THE DEPUTY JUDGE: Well, I am not minded to give permission to appeal, because whatever it may -- are you applying, because I have the form for it?
33. MR RAW: Yes.
34. THE DEPUTY JUDGE: I am not minded to on the basis that the defendant thought it was a matter of some significance. It seems to me, from what I have already said in my judgment, that the case is clear and I do not think it needs to go any further, either as a matter of public importance or because there is any reasonable or realistic prospect that it would succeed in the Court of Appeal.
35. MR RAW: So be it, my Lord.
36. THE DEPUTY JUDGE: Are there any orders in relation to your costs by way of legal aid arrangements or --
37. MR RAW: No, it is not a legally aided case.
38. THE DEPUTY JUDGE: Not a legally aided case.
39. MR RAW: No, not legally aided. So that is why I said I was very grateful to my learned friend for his kind words.
40. THE DEPUTY JUDGE: His generosity now appears immeasurably greater than I thought it was perhaps a moment or two ago.
41. MR RAW: Very kind. Thank you.
42. MR EDWARDS: My Lord, will the court draw up the order now or --
43. THE DEPUTY JUDGE: I am sorry, just give me a moment. (pause) Yes.
44. MR EDWARDS: Thank you.
45. THE DEPUTY JUDGE: No, I was saying yes to --
46. MR EDWARDS: About the order, should we draw up the order and submit it to your Lordship or --
47. THE DEPUTY JUDGE: Well, you did win, so you probably do have carriage of it, do you not, and its suit me. It is not going to tax you very much. It is only going to say judgment for the defendants and no order as to costs.
48. MR EDWARDS: Yes. Very good.
49. THE DEPUTY JUDGE: Good.