HS (India) v Secretary of State for the Home Department [2008] EWCA Civ 1510

Case No C5/2008/0473[2008] EWCA Civ 1510
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/11976/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 23 rd July 2008
Before
LORD JUSTICE WARDLORD JUSTICE LAWSLORD JUSTICE DYSON
Between
HS (INDIA)AppellantTHE SECRETARY OF STATERespondentFOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr S Juss (instructed by Malik Law Chambers) appeared for Appellant.Miss S Broadfoot (instructed by the Treasury Solicitor) appeared for Respondent.
Judgment
[1]This is an appeal with permission granted by Sedley LJ on 9 April 2008 against the decision of Senior Immigration Judge Waumsley, made on a reconsideration and promulgated on 15 January 2008. By that decision he dismissed the appellant’s appeal against the respondent’s refusal of his application for an extension of his stay in the United Kingdom as a minister of religion.[2]The appellant is a citizen of India, born on 25 October 2007. On 11 May 2005 he was granted entry clearance, marked “Visa for employment with Sikh Missionary Society.” The visa was valid for six months. He arrived in the United Kingdom on 22 May 2005. Shortly before his leave expired on 11 November 2005 he applied for an extension, as he put it, of leave to remain as a minister of religion. On 19 October 2005 he was granted leave to remain in that express capacity until 22 November 2006. It is to be noted that in January 2006 a new category of religious worker was created for the purposes of the Immigration Rules, namely “religious workers in non-pastoral roles”. Before his leave expired in November 2006 the appellant applied for a further extension as a minister of religion. He was granted a further 12 months, expiring on 22 May 2007, but his visa was endorsed “employed as a religious worker in a non-pastoral role only”.[3]Mr Juss representing the appellant before us submits that this was an error; the Home Office should have appreciated that he was in fact acting, and had been acting, as a minister. The appellant applied for a yet further extension on 31 May 2007. His original in-time application of 21 May had been returned for want of the correct payment. He produced supporting evidence that his role at the temple where he was now working was as a priest. This application was refused by letter dated 10 July 2007. The Secretary of State was not then satisfied that the appellant had entered the United Kingdom with a valid entry clearance as a minister of religion or that he was still engaged in the employment for which his entry clearance was granted, nor that his intended activity would bring him within the meaning of “minister of religion”. It is this refusal on 10 July 2007 that was the subject of the appeal proceedings leading ultimately to the appeal in this court.[4]At the tribunal level, the appellant’s appeal was allowed by Immigration Judge Pacey on 11 September 2007. She found (paragraph 19) that the appellant had been granted an extension of time as a minister of religion in October 2005, as indeed he had; and so, she held, the Secretary of State must have been satisfied that he was here in that capacity and met the requirements of rule 173, to which I will come in a moment. She held also that the further extension the appellant obtained to remain as a religious worker in a non-pastoral role was an error by the Secretary of State; that in fact the appellant had been employed as a minister of religion throughout his stay in the United Kingdom and that the relevant paragraph of the Rules governing his case was paragraph 173, whose terms he fulfilled.[5]Before coming to the decision of Senior Immigration Judge Waumsley on the reconsideration I should cite the relevant rules. The rule governing leave to enter as a minister of religion is rule 170:
“Requirements for leave to enter as a minister of religion, missionary, or member of a religious order 170. The requirements to be met by a person seeking leave to enter the United Kingdom as a minister of religion, missionary or member of a religious order are that he: [and then omitting some provisions] … (iva) if seeking leave as a Minister of Religion can produce an International English Language Testing System certificate issued to him to certify that he has achieved level 6 competence in spoken and written English and that it is dated not more than two years prior to the date on which the application is made.”
[6]However, the decision of the Secretary of State now under challenge is not of course the terms of the original leave to enter in 2005 but the refusal of leave to remain in July 2007. As I have shown, the appellant sought to remain as a minister of religion. That being so, the applicable rule was either Rule 173 if he had been granted entry to the United Kingdom in the capacity of a minister of religion, or 174A if his entry had not been granted in that capacity. Rule 173 provides, so far as material: “Requirements for an extension of stay as a minister of religion where entry to the United Kingdom was granted in that capacity. 173. The requirements for an extension of stay as a minister of religion where entry to the United Kingdom was granted in that capacity, missionary or member of a religious order are that the applicant:(i) entered the United Kingdom with a valid United Kingdom entry clearance as a minister of religion…; and(ii) is still engaged in the employment for which his entry clearance was granted; and(iii) is still required for the employment in question as certified by the leadership of his congregation, his employer or the head of his religious order; and [omitting some provisions] (b) if he entered the United Kingdom as a minister of religion, missionary or member of a religious order in accordance with sub paragraph (i), on or after 23 August 2004 but prior to 19 April 2007, or was granted leave to remain in accordance with paragraph 174B between those dates, meets the requirements of paragraph 170 (ii) -(iv) and if a minister of religion met the requirement to produce an International English Language Testing System certificate certifying that he achieved level 4 competence in spoken English at the time he was first granted leave in this capacity;” or[7]Rule 174A provides:
“Requirements for an extension of stay as a minister of religion where entry to the United Kingdom was not granted in that capacity 174A. The requirements for an extension of stay as a minister of religion for an applicant who did not enter the United Kingdom in that capacity are that he: … (iv) meets the requirements of paragraph 170 (ii)-(iva).”
[8]It is common ground that the appellant has never had an IELTS certificate, whether at level 4 or level 6. Senior Immigration

Judge Waumsley made this finding:

“23. I deal first with the question [whether] the respondent’s decision to refuse the appellant’s application for an extension of stay was in breach of the Immigration Rules. It is clear that it was not. It is plain beyond peradventure that the appellant cannot satisfy the requirements of the Immigration Rules for an extension of stay as a minister of religion, regardless of whether he entered the United Kingdom in that capacity (paragraph 173) or some other capacity (paragraph 174A). In either case, he is unable to produce the necessary IELTS certificate as required under the Immigration Rules because he does not have, and has never had, one.”
In my judgment that finding is plainly right; but in one way or another the Grounds of Appeal seek to escape its effect and to achieve a state of affairs by which the appellant is permitted to remain here as a minister of religion but without having supplied the required language certificate.[9]There are four grounds of appeal. In my judgment they amount broadly to two propositions, though with some refinements. The first proposition is that the Secretary of State has in effect waived the language requirement, at least by granting an extension in the capacity of minister of religion on 19 October 2005 without insisting on production of an IELTS certificate. Mr Juss would submit that the first immigration judge’s conclusion that he had been admitted as a minister of religion ought also to be accepted. In either of those events it is submitted that it would now be an abuse of power for the Secretary of State to insist on the rules’ strict compliance in relation to the latest extension sought.[10]The second proposition raised by the grounds is that the language requirement, which applies to ministers of religion only, is apt to perpetrate violations of Article 14 of the European Convention on Human Rights, prohibiting discrimination in the enjoyment of the Convention rights, in the context of Article 9, which of course guarantees freedom of thought and religion.[11]It is convenient to deal with the discrimination point first. My Lord, Ward LJ, indicated this afternoon to Mr Juss in the course of argument that we would not permit it to be raised. For my part it seems to me to be of great importance that, as Mr Juss accepts, no such point was raised either before Immigration Judge Pacey or Senior Immigration Judge Waumsley. Had it been raised it would have to have been supported by proper and full evidence in order to show a basis on which the court might hold that the rule was objectionable as being discriminatory. It was not so raised and no such evidence was sought to be advanced. Appeal lies to this court on a point of law only: so much is elementary. The tribunals below cannot be said to have erred in law by failing to deal with a point never raised before them unless the point was so obvious that the tribunal was in effect bound to notice it and deal with it. That is the effect of authority in this court in the case of R v SSHD ex parte Robinson[1998] QB 929.[12]It is plain that Robinson has no application here. The possibility that the relevant immigration rules might be bad for reasons of discrimination by no means springs from the page. Mr Juss went so far as to submit this afternoon that Sedley LJ’s grant of permission to appeal (to which I will refer further in a moment) entitled him to address the discrimination argument, whatever view this court took of the impact of the Robinson case. With respect to him, the notion that the single Lord Justice dealing with the case on paper and without notice can preclude such a point being raised and determined on its merits in this court is, to say the least, ambitious. In my judgment it is misconceived.[13]So much then for the discrimination argument. Associated with it, however, but raised as a distinct submission, is a further point. Mr Juss submitted that he should be allowed to raise criticisms of certain guidance relating to the rules contained in the immigration directorate instructions, which is of course a Home Office document. The criticism would be along the lines suggested, it seems, by Sedley LJ’s grant of permission. The learned

Lord Justice said this:

“If however the Home Office decision really turned on the provision in the IDI about being educated in ‘an English-speaking nation’ (Canada?, Zimbabwe? South Africa? India? Mauritius? Nigeria?) I think it requires the court’s attention. There is of course nothing wrong with disapplying a policy in proper circumstances, for example waiving testing for people who are clearly fluent English speakers but one has to ask whether the IDI legitimately accomplishes this.”
[14]Mr Juss would say “Amen” to that. He criticises the guidance, effectively for its inclusion of a parenthesis. The rule itself does not state that the IELTS requirement should only be waived if a person has been educated in an English-speaking country; it provides instead that the requirement may be waived by the entry clearance officer. Here is the parenthesis:
“For persons with existing English skills (for example those educated in an English speaking nation).”
[15]Mr Juss accepts that if the parenthesis “(for example those educated in an English-speaking nation)” were taken out of the guidance it would be utterly unobjectionable, and indeed perfectly sensible. However, he says the inclusion of the parenthesis is indeed objectionable; it may lead entry clearance officers to make a rigid distinction between applicants who come from English-speaking countries and those who do not. That may bear little, and in some cases no, relation to the actual English language skills of the applicant in question. The rule is thus arbitrary; he would I think say it is crude and indeed itself discriminatory. This in my judgment misreads the guidance. The guidance does not require that the discretion is to be exercised in favour of a person who was educated in an English-speaking nation regardless of their English language ability. The reference to those educated in an English-speaking nation is no more than an instance of a person who might be expected to have existing English language skills and therefore not be required to provide an IELTS certificate. The essence of the rule is that someone with such skills need not provide such a certificate and the parenthesis merely provides a possible instance or example. It seems to me that that is unobjectionable.[16]I have dealt with this point, albeit shortly, on the merits. In fact my view is that Mr Juss should no more be permitted to advance this argument than his wider argument on discrimination. No point of this kind relating to the IDI was taken before the tribunal below at any stage.[17]I turn then to what I have named the first proposition in the case, where there is complaint of an abuse of power. The appellant was granted further leave to remain on 19 October 2005 on a basis for which, having regard to the language requirement in the Rules, he had on the face of it no entitlement. In seeking to maintain the benefit of the terms of that grant and its effective application to his later claim to stay, so as to produce a result by which he would enjoy leave to remain without having to satisfy the English language requirement, Mr Juss does not seek to rely on the doctrine of legitimate expectation in any of its forms recognised in the cases. In those circumstances it is difficult, to my mind, to see how the Secretary of State might properly be restrained by the law from relying in 2007 on the full weight of the rule. I should say that Senior Immigration Judge Waumsley found as a fact (paragraph 26 of his determination) that in May 2005 the entry clearance officer granted entry clearance on the basis that the appellant was seeking entry as a Kirtani musician, not as a minister of religion. The Senior Immigration Judge gave reasons for that conclusion, which, looked at in isolation at any rate, are not in my view capable of sensible challenge.[18]However, Mr Juss has submitted (and this has been a considerable burden of his argument, not least in a very full written submission in reply) that Senior Immigration Judge Waumsley was not entitled to go behind the conclusion of the first immigration judge on this point, which was as I have indicated that the appellant must have been admitted initially as a minister of religion. If the Senior Immigration Judge was, contrary to this submission, entitled to form his own view as recorded in paragraph 26, then it is pertinent to note exactly what he said at paragraph 28:
“The appellant now seeks to revert to his former capacity, namely as a minister of religion. If he had been granted entry clearance initially expressly in that capacity, or if his last extension of stay had been granted expressly in that capacity, I would be more easily persuaded by Mr Hartley’s argument that, by not taking any objection to the absence of an IELTS certificate at that stage, the Entry Clearance Officer or (as the case may be) the respondent gave rise to a legitimate expectation on the appellant’s part that the requirement for an IELTS certificate had been waived outside the Immigration Rules for so long as he continued to remain in the United Kingdom in the same capacity. However, the chain was broken when the appellant was granted an extension of stay in a different, albeit related, category for which an IELTS certificate was not a requirement, namely as a religious worker in a non-pastoral role.”
Though stated in the context of legitimate expectation, these remarks seem to me to have considerable force, however the case is put, on waiver or abuse of power. The fact is that this appellant was at one stage granted leave to remain on a basis to which, having regard to the language requirement, he was not entitled. He has not relied on that fact to his later prejudice or detriment. There is no reason why the Senior Immigration Judge should have held that he was entitled to remain in the United Kingdom outside the Rules. But suppose Mr Juss is right and the Senior Immigration Judge should have accepted the Immigration Judge’s view of the status under which the appellant was granted leave to enter as well as his later leave to remain. The fact is that on his latest application, dealt with in July 2007, the language requirement applied. There is no legitimate expectation argument. And as my Lord Dyson LJ pointed out in the course of submissions this morning, the Rules themselves contemplate that a language certificate will be required upon every application made, even if it had not earlier been required or given when entry clearance was obtained.[19]In the absence of a viable argument based on legitimate expectation, there is, as it seems to me, no room for the proposition that the Asylum and Immigration Tribunal should have held that this appellant was entitled to leave to remain in the United Kingdom notwithstanding the fact that he did not comply with a condition in the relevant rule, namely that related to the language certificate.[20]For all those reasons I would uphold the decision of Senior Immigration Judge Waumsley and dismiss this appeal.[21]I agree.[22]I also agree.

Order

Appeal dismissed