United Kingdom House of Lords Decisions

ALEXANDER (Appellant) v IMMIGRATION APPEAL TRIBUNAL (Respondent) TH/34520/78 (1406)
5 July 1982 House of Lords

Lord Diplock
Lord Keith of Kinkel
Lord Roskill
Lord Brandon of Oakbrook
Lord Brightman

Michael Beloff QC (instructed by Seifert, Sedley & Co) for the appellant. Simon D Brown and Stephen Aitchison (instructed by Treasury Solicitor) for the respondent.
1. Lord Diplock. My Lords, for the reasons given in the speech prepared by my noble and learned friend, Lord Roskill, with which I agree, I too would allow the appeal.
2. Lord Keith of Kinkel. My Lords, I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it, and for the reasons he gives I too would allow the appeal.
3. Lord Roskill. My Lords, nearly four years ago, on 19 September 1978, the appellant arrived at Heathrow Airport. She was, and is, a citizen of Sri Lanka, and thus subject to immigration control under the Immigration Act 1971 ("1971 Act") and the then current Immigration Rules made pursuant to section 3(2) of the 1971 Act (H.C. 79 - "the Rules"). At the time of her arrival the appellant had an entry clearance. The immigration officer took the view that this entry clearance had been obtained by a material deception. This conclusion has at no time been challenged in any of the subsequent proceedings. This entry clearance was, therefore, of no avail to her at the time of her arrival, and is of no further relevance to this appeal. The appellant then applied for leave to enter as a student to begin a three-years' course in marketing studies. The immigration officer at Heathrow was satisfied that the appellant had at the material time a genuine and realistic intention of studying in this country, and that fact has never been in issue. But he was not satisfied either that she had sufficient means available to her to meet the whole cost of her intended course or to maintain herself, or, which is presently the important conclusion, that she intended to leave the United Kingdom after completing her studies. The immigration officer, being of that opinion, took the view that in those circumstances he possessed no discretion to admit her, and accordingly he did not purport to exercise any discretion. He, therefore, on the 21 of September 1978, refused the applicant leave to enter the United Kingdom as a student.
4. My Lords, the question of the applicant's means is no longer relevant. The sole issue for determination by your Lordships' House is whether, notwithstanding the immigration officer's conclusion that he was not satisfied that she intended to leave the United Kingdom after completing her studies, the Rules accorded to him a discretion under Rule 21 to admit her for "a short period".
5. My Lords, the immigration officer's decision has led to a remarkable succession of legal proceedings during the currency of which the appellant has, your Lordships were told by counsel, remained in this country albeit without pursuing her intended studies. That remarkable succession of legal proceedings has resulted in a remarkable difference of opinion upon what was agreed by counsel during the hearing of this appeal to be a very short, and your Lordships may think, simple point of construction of the last sentence of Rule 21 of the Rules which must, of course, be interpreted in the context of the antecedent Rules, 18, 19 and 20, and in particular, Rules 18 and 19.
6. The succession of proceedings began with an appeal by the appellant to an adjudicator. On the 9 October 1978 the adjudicator allowed her appeal. It is not necessary to refer to his reasons. They occupy some four closely printed pages. The immigration officer then appealed to the Immigration Appeal Tribunal. That tribunal, on the 16 November 1978, reversed the decision of the adjudicator, and allowed the immigration officer's appeal. Their reasons for so doing also occupy some four closely printed pages. The appellant then obtained leave, substantially out of time, to move the Divisional Court for an Order of Judicial Review to quash the determination of the Immigration Appeal Tribunal. On the 7 November 1980, some two years after the date of that determination, the Divisional Court (Donaldson LJ and Forbes J) quashed that determination and sent the matter back to the Immigration Appeal Tribunal for reconsideration in the light of their decision that, on the facts which I have outlined, the immigration officer upon the true construction of Rule 21 possessed the discretion to decide whether or not to admit the appellant "for a short period". They directed that the Immigration Tribunal must consider, as they had not previously done, whether or not that discretion should be exercised in the appellant's favour. An appeal to the Court of Appeal was then brought against that decision. On the 28 October 1981 the Court of Appeal (Lord Denning MR and Oliver and Watkins, LJJ) by a majority allowed that appeal, holding that there was no such discretion vested in the immigration officer. Oliver LJ delivered a powerful and closely reasoned dissenting judgment, agreeing with the conclusion of the Divisional Court. On the 21 January 1982 your Lordships' House gave the appellant leave to appeal against that decision of the Court of Appeal.
7. My Lords, since the date upon which the appellant was originally refused leave to enter, the Rules have been changed with effect from 1st March 1980 - H.C. 394. What were Rules 18-21 inclusive of the Rules have become Rules 21-25 inclusive of the new Rules. In Rule 25 of the new Rules, formerly Rule 21 of the Rules, there is a slight change in phraseology. Your Lordships are not concerned with the new Rules but it is right to record that Mr. Simon Brown for the respondents did not suggest that whatever was the correct answer to the true construction of Rule 21 of the Rules, a different result could be arrived at upon the true construction of the new Rule 25.
8. My Lords, for ease of reference I set out Rules 18, 19, 20 and 21 of the Rules in their entirety:

"Students

18. A passenger seeking entry to study in the United Kingdom should be admitted (subject to paragraph 12) if he presents a current entry clearance granted for that purpose. An entry clearance will be granted if the applicant produces evidence which satisfies the officer to whom he applies that he has been accepted for a course of study at a university, a college of education or further education, an independent school or any bona fide private educational institution; that the course will occupy the whole or a substantial part of his time; and that he can meet the cost of the course and of his own maintenance and that of any dependants during the course.

19. An applicant is to be refused an entry clearance as a student if the officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it. In assessing the case the officer should consider such points as whether the applicant's qualifications are adequate for the course he proposes to follow, and whether there is any evidence of sponsorship by his home government or any other official body. As a general rule an entry clearance is not to be granted unless the applicant proposes to spend not less than 15 hours a week in organised day-time study of a single subject or of related subjects, and is not to be granted for the taking of a correspondence course.

20. An applicant accepted for training as a nurse or midwife at a hospital should be granted an entry clearance as a student unless there is evidence that he or she has obtained acceptance by misrepresentation or does not intend to follow the course. Doctors and dentists are admissible for full-time post-graduate study even though they also intend during their stay to seek employment in training posts related to their studies.

21. A passenger who holds a current entry clearance or who can satisfy the Immigration Officer that he fulfils all the requirements of the preceding paragraphs, may be admitted for a period of up to 12 months, depending on the length of the course of study and on his means, with a condition restricting his freedom to take employment; he should be advised that he may apply to the Home Office in due course for an extension of stay. A passenger who satisfies the Immigration Officer that he has genuine and realistic intentions of studying in the United Kingdom but cannot satisfy the requirements of the preceding paragraphs may be admitted for a short period, within the limits of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case."

9. My Lords, reading Rules 18 and 19 together it seems clear that there are five requirements which a student seeking entry clearance must satisfy. The "officer" - let it be noted that he is different from the "Immigration Officer" in Rule 21 - will grant entry clearance if the applicant produces evidence which satisfies him that (1) the applicant has been accepted for a course of study at a university, etc. (2) the course will occupy the whole or substantial part of the applicant's time, (3) the applicant can meet the cost of the course and of his own maintenance and of the maintenance of any dependants during the course, (4) the applicant is able and intends to follow a full-time course of study, and (5) the applicant intends to leave the country on completion of that course. Under Rule 21, if the applicant holds a current entry clearance, which means that he has already satisfied the relevant officer of the five requirements, or if he can satisfy "the Immigration Officer" that he fulfils all the requirements of the "preceding paragraphs", he may be admitted for a period of up to twelve months. It seems to me clear that the phrase "the requirements of the preceding paragraphs" are those five requirements specified in Rules 18 and 19 which I have just enumerated. If, however, he can only satisfy the immigration officer that "he has genuine and realistic intentions of studying in the United Kingdom" - that plainly refers to requirement (4) above "but cannot satisfy the requirements of the preceding paragraphs" - he "may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case." Plainly the word "may" in that context is permissive. But does the last phrase permit the exercise of the discretion in favour of the applicant, if he fails to satisfy the immigration officer that he intends to leave the country at the end of the course in question?
10. My Lords, the learned Master of the Rolls thought that the crucial words in Rule 19 were imperative. They required the immigration officer to refuse entry if requirement (5) was not satisfied. Those words, he said, "took priority" over the last words in Rule 21. Watkins LJ, in agreeing with the Master of the Rolls, drew a distinction between what the learned Lord Justice called "the requirements" of Rule 18 and "the prohibitions" of Rule 19. But though the two Rules are differently worded, Rule 18 does not use the word "requirement" and Rule 19 does not use the word "prohibition". The word "requirement" is used in Rule 21 in two places, and with reference to the "preceding paragraphs" which as a matter of construction must, I think, include both Rules 18 and 19. With all respect to the learned Lord Justice I see no justification for distinguishing between the provisions of these two Rules as he suggests.
11. My Lords, the construction which found favour with both the learned Master of the Rolls and Watkins LJ demands the restriction of the phrase "all the requirements of the preceding paragraphs" in Rule 21, to the requirements of Rule 18 only. With respect I am unable so to read the relevant part of Rule 21. These Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed. The Rules give guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation.
12. My Lords, I have found the reasoning of Donaldson LJ in the Divisional Court and of Oliver LJ in the Court of Appeal convincing, for like them, I can see no justification for cutting down what I would regard as the natural meaning of the last sentence of Rule 21. A student who has not got a prior entry clearance can properly, in an appropriate case, if the immigration officer thinks fit, be admitted for a short period to get his affairs in order and then satisfy those of the requirements which in the opinion of the immigration officer he has not previously satisfied on arrival, leaving it to him in due course, when he is in a position to do so, to apply to the Home Office. Mr Simon Brown argued that because Rule 21 required that the student must satisfy the immigration officer of his genuine and realistic intention of studying in the UK before any question of the exercise of any discretion could arise, there should as it were be treated as "built in" to that mandatory requirement a further mandatory requirement that the student should also be able to satisfy the immigration officer of his intention to leave the United Kingdom on completion of the course. My Lords, I can only say, with respect, that I cannot extract that meaning from the language of Rule 21. He also prayed in aid what he called the complementary requirement regarding students in the Rules for control after their entry (HC 80) and in particular Rule 12 of those Rules. My Lord, I am afraid that I cannot find anything in Rule 12 of those Rules which would assist in the construction of the Rules with which your Lordships are concerned.
13. My Lords, the word "requirements" must clearly be given the same meaning in both places where that word is used in Rule 21. Giving it the same meaning in both places it seems to me clear that the word refers to all the requirements of both Rules 18 and 19 once the immigration officer is satisfied of the student's genuine and realistic intention of studying in the United Kingdom. My Lords, I might have contented myself with adopting as my own the judgment of Oliver LJ, but in deference to those who have expressed a contrary view I have endeavoured to state my own views in my own words. I would, therefore, allow this appeal. I would restore the order of the Divisional Court dated 7 November 1980, quashing the determination of the Immigration Appeal Tribunal dated 16 November 1978, and remitting the matter to that Tribunal for reconsideration in the light of the decision of your Lordships' House that the discretion in question exists and must now be exercised by them. How the discretion is to be exercised is entirely a matter for them.
14. Lord Brandon of Oakbrook. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill. I agree with it and would allow the appeal accordingly.
15. Lord Brightman. My Lords, I agree with the speech prepared by my noble and learned friend, Lord Roskill, and would allow the appeal.

Appeal allowed. Decision of the Court of Appeal reversed, and that of the Divisional Court restored. The matter referred to the Immigration Appeal Tribunal for reconsideration in the light of the decision. How the Tribunal exercised its discretion was entirely a matter for it.