QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF) AZIZUL HUSSAIN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Samantha Broadfoot (instructed by Government Legal Department) for the Defendant
Hearing dates: 26th January 2016
Crown Copyright ©
MR TIMOTHY DUTTON CBE QC:
"Having left the Common Travel Area (the UK, the Channel Islands, the Isle of Man and the Republic of Ireland), your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the United Kingdom".
"You are not required to leave the United Kingdom as a result of this decision. You still have leave to enter or remain where your current conditions continue to apply under 25th November 2014. Please ensure that you understand the conditions of your stay …
Although you are not required to leave the United Kingdom at this time your leave to enter or remain in the United Kingdom is due to expire on 25th November 2014. You need to make arrangements to plan your departure before your leave expires. If you intend to remain in the United Kingdom after this time you should make a further application for leave before your current leave expires."
"Under the Immigration Rules you are required to have a visa to enter the United Kingdom and you have no visa. This is because you have leave to remain in the United Kingdom as a spouse of a British national but in July 2014 your wife notified the Home Office that your marriage was no longer subsistent. Subsequently on 18th August 2014 your leave to remain was curtailed with no right of appeal".
i) That it was arguable that if the Claimant had left the UK before curtailment of his leave to remain was served, his leave to remain did not lapse and he had leave to enter on 30th September 2014 and was then unlawfully detained and
ii) Alternatively that it is arguable that he had an in-country right of appeal against the decision to curtail his leave.
The Legislative Framework
"A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the Common Travel Area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply."
(1) In this Article "leave" means –
(a) Leave to enter the United Kingdom (including leave to enter conferred by means of an entry clearance under Article 2)
(b) Leave to remain in the United Kingdom.
(2) Subject to Paragraph (3) wherever a person has leave which is enforced and which was:
(a) Conferred by means of an entry clearance (other than a visit visa) under Article 2; or
(b) Given by an Immigration Officer or the Secretary of State for a period exceeding six months, such leave shall not lapse on his going to a country or territory outside the Common Travel Area.
(3) Paragraph (2) shall not apply;
(a) Where a limited leave has been varied by the Secretary of State; and
(b) Following the variation the period of leave remaining is six months or less.
(4) Where a person is outside the United Kingdom and has leave which is enforced by virtue of this Article, that leave may be cancelled;
(a) In the case of leave to enter, by an Immigration Officer; or
(b) In the case of leave to remain, by the Secretary of State."
Paragraphs (6), (8) and (9) have been referred to and relied upon by both parties and I refer to them further below.
"20A. Leave to enter or remain in the United Kingdom will usually lapse on the holder going to a country or territory outside the Common Travel Area. However, under Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 such leave will not lapse where it was given for a period exceeding six months or where it was conferred by means of an entry clearance (other than a visit visa)"
i) Varying a person's leave to enter or remain in the United Kingdom, may be given to the person affected as required by Section 4(1) of the Act as follows
ii) The notice may be –
a) Sent by postal service to a postal address provided for correspondence by the person or the person's representative;
iii) Where no postal or email address for correspondence has been provided the notice may be sent
a) By postal service to
i) The last known or usual place of abode, place of study or place of business of the person; or
ii) The last known or usual place of business of the person's representative …
The Parties' Submissions
"If you are curtailing leave so that some leave remains, you must also include the following line: "If you leave the UK your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the UK". This is to warn the migrant that, in accordance with the above Order, their curtailed leave will lapse if they leave the UK, so they will not be able to rely on that leave to re-enter the UK if they travel after their leave is curtailed"
"Until the amendments brought about by the Immigration and Asylum Act 1999, a person's leave to enter or remain in the UK lapsed on his or her leaving the Common Travel Area. This meant that many persons with limited leave (as students, for example) who left the UK for a short holiday were refused leave to enter on their return, because they did not have an entry clearance or visa. The provisions of the Immigration (Leave to Enter and Remain) Order 2000 has put an end to this anomaly. Leave to enter or remain does not lapse when the holder goes abroad, if it was conferred by an entry clearance (other than a visit visa) or by an Immigration Officer or the Secretary of State for more than six months. There appear to be two exceptions. First, Section 3C of the Immigration Act 1971 … Secondly, that where leave has already been varied by the Secretary of State and, following the variation, there is less than six months left, it will lapse on leaving the UK."
Mr Blundell relies upon the emphasised passage.
i) First, the Claimant's submission requires one to read limiting words into Article 13(3) to the following effect "Paragraph (2) shall not apply (a) where limited leave has been varied by the Secretary of State whilst the person was in the United Kingdom; and (b) following the variation the period of leave remaining is six months or less". The Defendant contends that Paragraph 3 is silent on the location of the individual whose leave is varied. She therefore argues that if it had been intended that Article 13(3) were to have the meaning advanced by the Claimant additional words would have to be read into sub-paragraph 3 which is simply unjustified.
ii) Secondly, it is submitted that the Claimant's construction is inconsistent with Articles 13(4), (6) and (8). It is said that Article 13 contemplates that leave may be varied or cancelled whilst the individual is outside the United Kingdom – see Paragraphs (6) – (9). However, where Article 13(2) applies (as the Claimant contends), the leave which was in force at the time of departure (in this case until August 2015) is stated, by operation of Article 13(4) to remain in force indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited). The Claimant's construction would have prevented the Secretary of State from curtailing a person's leave whilst outside the United Kingdom and would amount to a considerable fetter on her statutory power to do so. This would be in circumstances where the Article relied upon expressly contemplates such a course of action. It is contended that the Claimant's argument that Paragraphs (6) – (9) are the paragraphs which apply where a person is outside the United Kingdom for this reason alone cannot be right.
iii) Thirdly Miss Broadfoot argues that there is no justification for the limitation contended for by the Claimant. The Secretary of State must be able she says to curtail a person's leave upon discovery, for example, that the leave in question was obtained by fraud. Her submission is that such curtailment must be possible no matter the location of the individual concerned for otherwise the effect of the Claimant's construction would be that the Defendant would have to wait until the fraudster had returned to the United Kingdom on the leave wrongly granted, be permitted to enter and then the leave would have to be curtailed. It is submitted that Parliament cannot have intended such an unusual and cumbersome process. In any event these surprising results of the Claimant's arguments it is said support the Defendant's construction of Article 13.
The Correct Construction of Article 13 of the Immigration (Leave to Enter and Remain) Order 2000