THE QUEEN v ON THE APPLICATION OF CONSUELO HASHMI [2002] EWCA Civ 728

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Cresswell)
[2002] EWCA Civ 728Case No C/2001/2490Venue Royal Courts of Justice, Strand, London WC2, Friday 3rd May, 2002
Between
THE QUEENON THE APPLICATION OF CONSUELO HASHMIClaimant/AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/Respondent
Before
Lord Justice BrookeLord Justice KaySir Swinton ThomasMR M GILL QC and MISS N BRAGANZA (Instructed by Messrs Ole Hansen & Partners, London)appeared on behalf of the AppellantMISS D ROSE (Instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent

LORD JUSTICE BROOKE:

[1]I invite Sir Swinton Thomas to give the first judgment.

SIR SWINTON THOMAS: This is an appeal from a decision of Cresswell J of 1st November 2001, when he dismissed the claimant's claim against the Secretary of State for the Home Department for judicial review of: (1) the failure of the defendant to endorse the claimant's and her dependants' passport in accordance with his letter of 11th July 2000 with indefinite leave to remain ("ILR"); (2) the defendant's decision of 31st July without notice to the claimant for any enquiry being made of her, effectively reversing the previous decision of 11th July 2000 when refusing to vary the claimant's and her dependants' leave to remain.

[3]The relief that was sought by Mrs Hashmi was:(1) an order requiring the defendant to endorse the claimant and her dependants' passport with ILR;(2) an order quashing the defendant's decision of 31st July 2001; and(3) damages.[4]The background to the claim is as follows. The claimant, Mrs Consuelo Hashmi, is a national of Colombia. She arrived in the United Kingdom on 31st December 1997 and was given leave to enter as a visitor. On 2nd May 1998 she married her husband, Mr Sajid Hashmi, a British citizen. On 17th June 1998 she applied for an extension of her stay as a spouse settled in this country. On 17th June 1998 she applied for an extension of her stay in the United Kingdom on the grounds of her marriage. On 2nd November she was given leave to remain as a foreign spouse of a British citizen until 10th October 1999. On 8th November she visited Colombia to see her daughter who was ill and returned to this country on 8th December. On 19th December she went to Colombia again to see her daughter. She returned to this country on 13th March 1999. On 15th September 1999 the appellant applied for ILR. She submitted her passports to the Immigration and Nationality Department of the Home Office ("IND"), but, unfortunately, they lost the passports. This seems to me to be a relevant factor in relation to what occurred thereafter.[5]Mr Hashmi, the appellant's husband, wrote to Miss Tessa Jowell MP asking for her assistance. On 17th November new passports were issued to the appellant and her family. In November she and her family went to Ecuador, as a result of which the application for ILR lapsed. They returned to the United Kingdom on 6th March 2000 and the appellant was given leave to enter as a spouse of a British citizen for 12 months, that leave expiring on 6th March 2001. That is a relevant date and one which is relied upon by Miss Rose on behalf of the Secretary of State.[6]On 7th April 2000 the appellant applied to extend her leave to enter to ILR. She was advised that those applications were premature because she still had leave to be in this country. On 14th June Mr Hashmi wrote again to Miss Jowell asking for her help. Miss Jowell wrote to the IND asking that the family be given "special consideration".[7]On 11th July 2000 the Secretary of State wrote to Miss Jowell a letter which is central to this appeal. It reads as follows:
"Dear Ms Jowell Thank you for your letter of 27 June enclosing this correspondence from Mr Sajid Hashmi of 191, Auckland Hill, London SE27 9PD who is concerned about his family's immigration status. As you know Mrs Hashmi, her daughter and grand-daughter were given limited leave to enter the United Kingdom until 6 March 2001 when they returned here from Bogota. On 17 April they were advised that their applications for indefinite leave to remain could not be processed because they had extant leave until next year. This case has now been very carefully reviewed in the light of your representations. In view of the fact that we previously mislaid the family's papers and as Mrs Hashmi has already completed 12 months as the spouse of a British Citizen by October 1999 we have decided exceptionally that the family may be granted indefinite leave to remain immediately. Their original passports should accordingly be sent to me at the Immigration and Nationality Directorate [address given] by recorded delivery. I will then arrange for the documents to be appropriately endorsed and returned to the family's home address."
[8]On 17th August the appellant delivered the relevant passports to the Home Office to be endorsed with her ILR. On 21st August and 24th August her husband and her husband's solicitors wrote to the Home Office saying that the marriage had broken down and he no longer supported her application for ILR. Between December 2000 and 15th June 2001 the appellant and her solicitors on a number of occasions pressed the Home Office, asking that the passports be returned duly stamped. On 31st July 2001, just over a year after the letter of 11th July 2000, the Home Office wrote to the appellant's solicitors stating that her application for ILR was refused on the ground that her marriage was no longer subsisting. So far as is relevant, the letter reads: "Your client's application has been refused as her marriage to Mr Sajid Hussain Hashmi is no longer subsisting. The requirement for indefinite leave to remain for the spouse of a person present and settled in the United Kingdom are that ..." and they are then set out.[9]In consequence of that letter these proceedings were commenced.[10]Section 4(1) of the Immigration Act 1971 provides:
"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers should be exercised by notice in writing given to the person affected, except for the powers under section 3(3) may be exercised generally in respect of any class of persons by order made by statutory instrument."
[11]The requirements for ILR as the spouse of a person present and settled in the United Kingdom are set out in paragraph 287(a) of the Immigration Rules. So far as is relevant to this case, these are:
"(i) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of a person present and settled [in the United Kingdom]; and (ii) the applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and (iii) each of the parties intends to live permanently with the other as his or her spouse; ..."
[12]It is common ground in this case that the appellant fulfilled each of those requirements as at the time when the letter of 11th July 2000 was spent by the Home Office to Miss Jowell.[13]The first issue that arises on this appeal is whether the letter of 11th July 2000 amounted in itself to a decision and, if so, whether, on a proper construction, it granted ILR to the appellant and her two dependants.[14]In immigration cases decisions are frequently given by way of letter and, in my judgment, the contents of the letter of 11th July which I have read are clearly communicating a considered decision by the Home Office. Miss Rose, on behalf of the Home Office, submits that, properly construed, the letter of 11th July was not a grant of ILR, but was merely an assurance that ILR would in time be granted, assuming that the relevant considerations set out in the Immigration Rules were still in place. Miss Rose submits that the assurance, as she construes the letter of 11th July, was made on the understanding that the representations made by the appellant and her husband in their application continued to apply. As I have already said, the conditions did subsist as at 11th July 2000. In my view there is no suggestion at all contained in the letter of 11th July that the leave to remain might at some future stage be reconsidered if circumstances changed. The relevant sentence in the letter is:
"... we have decided exceptionally that the family may be granted indefinite leave to remain immediately."
[15]In my judgment those words clearly have the connotation that leave has been granted, and can only have that connotation. All that remained was the formality of the submission of the passports to the IND and the writer of the letter, as he states, would then arrange for the documents to be appropriately endorsed and returned to the family's home address.[16]Miss Rose places reliance on Minton v Secretary of State for the Home Department [1990] Imm AR 199. That case turned on the legal effect of an illegible stamp on the appellant's passport and the court held that that did not amount to a notice in writing. Unlike this case, in Minton there was no notice apart from the illegible stamp. In my view, that case does not assist the respondent on the facts of this case. The stamping of the passports itself does not amount to a decision. It may evidence a decision which has previously been made, but the stamping is an administrative act following the decision having been made.[17]Miss Rose further submits that if a document is to be relied upon as a decision granting ILR, it must be certain in its terms. She submits that the letter of 11th July was uncertain, in that it did not name Mrs Hashmi's daughter and granddaughter in terms. Miss Rose also invited our attention to the form of document (page 147 of our bundle) which is normally sent to an applicant who is granted ILR, which is certainly in very different terms to the letter of 11th July.[18]The failure specifically to name the daughter and the granddaughter cannot of itself invalidate the clear terms of the letter of 11th July which, as I have said, in my view is a letter granting ILR. All that was needed, at an earlier stage, was to ally this document with the application itself, and if the Home Office had done what they promised to do that would then be overtaken when the passports were appropriately endorsed and returned to the family.[19]The next point that is taken on behalf of the respondent - and which is one which appealed to the learned judge - is that the letter of 11th July did not constitute notice in writing to the appellant as required by section 4(1) of the 1971 Act. The letter was sent to Miss Jowell and was addressed to Mr Sajid Hashmi. In my judgment, both Mr Hashmi and Miss Jowell were acting on behalf of and as representatives of the appellant when the respective letters were written. One can readily understand there may be circumstances in which a person in the position of a Member of Parliament may write a letter to a government department and is not acting as an agent or representative of his or her constituent. Whether or not she is will depend on the circumstances, the subject matter of the correspondence, and the nature of the correspondence between the MP, the constituent and the government department. However, both the terms of Miss Jowell's letter to the Home Office and the tone of the letter of reply of 11th July are consistent, and consistent only, with Miss Jowell acting as the representative and on behalf of both Mr and Mrs Hashmi, and the Home Office replying to her in that capacity. I agree with the submission made by Mr Manjit Gill QC in his skeleton argument that when read as a whole it is plain that the intention of the writer of the letter of 11th July was to communicate to the appellant through Miss Jowell that her passport would be stamped ILR because she fulfilled the necessary requirements. Nor, in my view, does it make any difference that the correspondence was between Miss Jowell and Mr Hashmi, the latter acting for his wife and her dependants. As was pointed out, no other letter was sent by the Home Office apart from that letter of 11th July.[20]I would accordingly conclude that the letter of 11th July did constitute the exercise by the Secretary of State of his power to grant ILR. Short of exceptional circumstances, such as the leave having been obtained by fraud or misrepresentation, that leave, if properly granted, cannot subsequently be withdrawn merely on the basis that there has been a change of circumstances.[21]Accordingly, and for those reasons, I would allow this appeal.

LORD JUSTICE KAY: I agree.

LORD JUSTICE BROOKE: I also agree.

ORDER

Appeal allowed with costs; detailed assessment of the claimant's Community Legal Services Funding; permission to appeal to the House of Lords refused. (Order not part of approved judgment)

Cited in 6 later judgments