MF (Pakistan) v Secretary of state For the home department [2013] EWCA Civ 768

Case No C5/2012/0506[2013] EWCA Civ 768
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: IA/14054/2011]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 5 th February 2013
Before
LORD JUSTICE MUMMERYLORD JUSTICE PITCHFORDLORD JUSTICE BEATSON
Between
MF (Pakistan)AppellantSecretary of StateRespondentfor the Home DepartmentRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Zane Malik (instructed by Messrs Malik Law) appeared for Appellant.Mr Charles Bourne (instructed by the Treasury Solicitor) appeared for Respondent.
Judgment

The issue

[1]Persons who have no right of abode in the United Kingdom within the meaning of section 1(1) of the Immigration Act 1971 :"...may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act;" (see Section 1(2) Immigration Act 1971). The Act distinguishes between leave to enter, which may be given or refused on or before arrival in the United Kingdom, and leave to remain, which may be given after entry into the United Kingdom (see section 3(1) of the 1971 Act).[2]The issue which arises in the present appeal is whether and in what circumstances leave to enter or remain may be "cancelled" where the person concerned temporarily leaves the common travel area of the United Kingdom and returns during his period of limited leave to remain.

The background facts

[3]The appellant is a national of Pakistan, who was born on 14 March 1980. He was first issued with a student visa in 2006 and thereafter received successive grants of leave to remain as a student. On 20 August 2010 the appellant made an application to vary his leave to remain in order to undertake a course in hotel management at St John's College in Harrow commencing in September 2010. The application was refused on 20 October. The appellant informed the college of his intention to appeal. An appeal was lodged on 4 November and allowed on 17 December 2010.[4]On 9 February 2011, in consequence of the successful appeal, the appellant was granted leave to remain until 31 December of the same year. On 27 February 2011, following the death of his uncle, the appellant travelled to Pakistan, he did not return to the United Kingdom until about 10 April 2011. On his arrival he was interviewed by an immigration officer, Mr Brennan. He said that he was a student studying for a diploma in hotel management at St John's College. He produced a confirmation letter. The immigration officer inquired about his ability to attend given that his home address was in Huntingdon. The appellant said that he drove to college in Harrow on Mondays, Tuesdays and Wednesdays. He told the officer that he had last attended the college on the Wednesday before he had departed for Pakistan. He claimed that his attendance had been "pretty good" but added that the college could better answer the officer's questions. When asked about his course of study, the appellant was vague and could not describe any of his assignments. He was issued with form IS.81 requiring him to attend for further examination.[5]Meanwhile a second immigration officer, Ms Ijaz, received information from the principal of St John's College. The appellant had been informed at the time that his application for leave had been refused in October that he could not attend any classes until a valid visa had been issued. The college had since heard nothing from the appellant and no course fees had been paid. Accordingly the college had withdrawn its sponsorship. When asked by Immigration Officer Ijaz about his claim to have attended college on the Wednesday before his departure, the appellant said that he could not explain except that he had been tired when interviewed.[6]Ms Ijaz concluded that there had been a change of circumstances. The basis for the grant of leave to remain no longer existed. The appellant had not attended the course for which leave was given on 9 February and his place had since been withdrawn. A chief immigration officer refused entry to the appellant under paragraph 321A of the Immigration Rules on form IS.82C dated 11 April 2011 and removal directions were given.[7]The appellant was given temporary leave to enter in order to lodge an in-country appeal which was heard by the First-tier Tribunal on 27 May 2011. In the meantime the appellant had, in April 2011, enrolled on a different course at Peterborough International College commencing on 6 June 2011. Tuition fees for the year were £3,350 of which £2000 was paid on 20 April.[8]In a determination promulgated on 9 June 2011 the First-tier Tribunal found that the appellant had failed to notify St John's College of his successful appeal and of the issue of his identity documents on 9 February before he left for Pakistan on 27 February. Secondly, on his return to the United Kingdom, the appellant had misled Immigration Officer Brennan as to his attendance at the college. His place was no longer available to him. The tribunal found that there had been a change of circumstances sufficient to justify cancellation of leave to remain. The tribunal found that no breach of Article 8 was occasioned by the decision to remove the appellant.[9]Permission to appeal to the Upper Tribunal was given on grounds which were subsequently substituted. In the Upper Tribunal the appellant argued that:(1) the statutory scheme does not give an immigration officer power to cancel leave to remain granted after his arrival in the United Kingdom;(2) the Secretary of State had failed unfairly to consider the alternative of curtailment of leave to remain; and(3) the Secretary of State had not established a material change of circumstances which justified the cancellation of the appellant's leave.[10]The Upper Tribunal resolved each of these grounds in favour of the Secretary of State. On 5 November 2012 Sir Stephen Sedley granted permission to the appellant in particular upon ground 1. We have heard submissions from Mr Malik in respect of all three grounds, for which we are grateful.

The statutory scheme

[11]It is first necessary to examine the source of the power which the Chief Immigration Officer purported to exercise on 11 April 2011. Section 3(1) of the Immigration Act 1971 requires that a person who is not a British citizen may not enter the United Kingdom unless given leave to do so. Leave to enter may be given or if a person is already in the United Kingdom. Leave to remain may be given for a limited or indefinite period and, where limited leave is given, conditions may be attached. The appellant was given limited leave to remain to attend his course at St John's College Harrow.[12]Section 3(4) of the Immigration Act 1971 provides:
"(4) 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"
Section 3B(1) of the Act empowers the Secretary of State to make by[13]Section 4 and Schedule 2 to the Act make provision for the appointment of immigration officers by the Secretary of State to carry out the examination of persons arriving in the United Kingdom for the purpose of exercising the function of giving or refusing leave to enter.[14]By paragraphs 2A(1) and (2) of Schedule 2 a person who has arrived in the United Kingdom with leave to enter given before his arrival :
"(2) … may be examined by an immigration officer for the purpose of establishing -- (a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled … "
And an immigration officer may under paragraph 2A(8) cancel his leave to enter.[15]The Immigration (Leave to Enter and Remain) Order 2000 (SI 1161) was made by the then Secretary of State pursuant to the power given under section 3A and 3B of the Immigration Act 1971. Part IV, Article 13 of the Order relaxed the effect of section 3(4) of the Act as follows :
"13 (2) Subject to paragraph (3) where a person has leave which is in force and which was: a) … 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."
Paragraph 3 provides that the concession made in paragraph 2 shall not apply where limited leave to remain has been varied by the Secretary of State and, as a consequence, the remaining period is six months or less.[16]Paragraph 4(a) provides that, where a person with leave to remain for more than six months has stayed outside the United Kingdom for a continuous period of more than two years, the leave shall thereupon lapse.[17]By Article 13 (5):
"(5) For the purposes of paragraph 2 and 2A of Schedule 2 to the Act (examination by immigration officers and medical examiners), leave to remain which remains in force under this Article shall be treated, upon the holder's arrival in the United Kingdom, as leave to enter which had been granted to the holder before his arrival."
[18]The effect of section 3(4) and Schedule 2 paragraph 2A(1) and (2) to the 1971 Act, read together with Article 13(5) of the 2000 Order, is that where a person(i) who has been given leave to remain for a period exceeding six months,(ii) travels to a country outside the common travel area, but(iii) returns to the United Kingdom before the expiration of the period of leave his leave to remain will not lapse but on arrival his leave will be treated as leave to enter and accordingly the holder may be examined by an immigration officer for the purpose of establishing whether there has been such a change in his circumstances that leave to enter should be cancelled"[19]Paragraph 10 of the Immigration Rules provides that the power to cancel leave to enter or remain which is already in force must be exercised on the authority of the Chief Immigration Officer or immigration inspector. The grounds upon which leave to enter or remain may be cancelled are stated in Immigration Rules paragraph 321 A. Those grounds include :
"(1) There has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled..."

Ground 1 -- the arguments

[20]The appellant's first ground of appeal is that the cancellation of his leave to remain was unlawful because it was beyond the powers given to the Secretary of State by the Immigration Act 1971. Mr Malik argues that the power to make an order under section 3D did not include the power to make provision for the cancellation as opposed to the variation of leave to remain. Neither, Mr Malik submits, can a power to cancel be derived from Schedule 2 paragraph 2A of the Act, which applies to a person who has leave to enter given to him before his arrival. The appellant was in the United Kingdom when he applied for and was granted limited leave to remain.[21]Part IV of the Immigration (Leave to Enter and Remain) Order 2000 under the power given by section 3D(2)(c) of the Act made provision that leave to remain for a period exceeding six months would not lapse if the person concerned left the common travel area. However, Article 13(5) of the Order purported to empower cancellation of leave to remain by providing that leave to remain "shall be treated, upon the holder's arrival in the United Kingdom, as leave to enter which has been granted to the holder before his arrival”, and by that means to extend the power of cancellation to those who have leave to remain but have left the common travel area during the period of leave.[22]That was not, Mr Malik submits, a legitimate use of the power to make an order under section 3B of the 1971 Act. Section 3B entitled the Secretary of State to make an order only with respect to the "giving, refusal or varying of leave to remain", not with respect to the cancellation of leave to remain. The Order is therefore ultra vires the Act.[23]Mr Bourne, on behalf of the Secretary of State, submits that Article 13(5) of the Order was incidental and supplemental to Article 13(2) and as such was permitted by section 3B(3) of the Act. Article 13(5) was required to place the person who returned to the United Kingdom during a period when he had leave to remain in the same position as a person who arrived for the first time with leave to enter.[24]Mr Bourne submitted that the untouched effect of section 3(4) of the Act was to deprive the holder of leave to remain of the benefit of that leave once he had left the common travel area unless, in rare circumstances, he was not required to obtain leave to enter upon his return. Those rare circumstances might include, for example, that the holder was in possession of a multiple entry visa.[25]In the alternative, it is submitted that cancellation of leave to remain is no different in kind from a variation which has the same effect name to bring leave to remain to an end. No-one doubts that section 3B(1) enabled the Secretary of State to provide by order that leave to remain may be varied by reducing the period of leave to extinction. The Act itself recognises that effect in section 3D(1)(a), which provides that, when a variation has the result that a person no longer has leave to remain, his leave will be extended to enable an in-country right of appeal under section 82(1), Nationality Immigration and Asylum Act 2002.[26]Mr Malik's second and incidental argument under his ground 1 is that the Immigration Rules, paragraphs 10 and 321A, to the extent that they purport to apply to those who return to the United Kingdom with extant leave to remain, are also ultra vires section 3(2) of the Act. The Act makes no provision for cancellation of leave to remain and the Immigration Rules may only lay down the practice to be followed in "the administration of this Act". Mr Malik submits that the latter phrase is not apt to cover the practice to be followed in the administration of subordinate legislation made under the Act.[27]The respondent replies that the Act includes section 3D, under subsection 4 of which provisions of the Act are to be read subject to the terms of an order made under the section. Thus section 3D(4) provides the statutory justification in paragraphs 10 and 321A of the Immigration Rules as they apply to a person in the appellant's position. Furthermore the origin of the power to conduct the examination into the appellant's circumstances was not the Immigration Rules but Schedule 2 paragraph 2A(2)(a), read together with Article 13(5) of the 2000 Order.

Ground 1 -- Discussion

[28]The essential feature of regulation and control of those without the right of abode in the United Kingdom is the giving of leave to enter before or on arrival or the giving of leave to remain when the person concerned is already in the United Kingdom. Leave to enter or remain may be varied by restricting the limit on the duration of stay (see section 3(3)(a)). However, under section 3(4) a person who leaves the common travel area during the period of leave to remain loses his leave to remain unless he returns in circumstances in which he is not required to obtain leave to enter.[29]Section 3B(2)(c) empowered the Secretary of State to make provision for such a person's leave not to lapse and, by section 3B(4), section 3(4) would take effect subject to the order. Article 13(2)(b) provided that leave to remain for a period exceeding six months would not lapse but, by Article 13(5), on his arrival on return he would be treated as a person who had leave to enter. He therefore became subject to examination at the discretion of the immigration officer under Schedule 2 paragraph 2A(2) (a) to the Act.[30]It is common ground that Article 13(5) of the 2000 Order cannot take effect if it does not properly derive from the enablement power given to the Secretary of State by section 3B of the 1971 Act.[31]In my judgment Article 13(5) was incidental and supplemental to the relaxation of the effect of section 3(4) of the Act achieved by Article 13(2)(b) under the express power so to order granted by section 3B(2)(c). I do not for my part consider that Article 13(5) amounted to an unlawful extension of the power to examine arrivals. It was, in the view of the then Secretary of State, a necessary qualification to the relaxation of section 3(4). All Article 13(5) does is to place in the same position those with advanced leave to enter and those with limited but extant leave to remain who return to the United Kingdom following a period abroad. The President of the Upper Tribunal, Blake J, and Upper Tribunal

Judge King described the position at paragraph 26 of their determination as follows:

"26. In our judgment, therefore, the Secretary of State was not creating novel powers of cancelling the limited leave that was outside the purpose of section 3B, rather her predecessor was creating a novel class of non-lapsing leave to remain that would justify admission to the United Kingdom after the trip abroad but needed to temper this new provision by applying the same powers of cancellation to it as if it had been a form of entry clearance or leave to enter. The power to cancel such leave was needed as an ancillary provision to the new class of non-lapsing leave "
[32]I agree, with respect. Article 13(2)(b) was introduced to alleviate the draconian effects of section 3(4) of the Act. At paragraph 4.6 of the eighth edition of MacDonald’s Immigration Law and Practice the editors drew attention to those unwanted effects of section 3(4). Students might take a short break in the middle of term and return to sit examinations. They would be refused leave to enter on their return. Appeals against that decision would have to be conducted out of country. However, if Mr Malik's argument is correct, the Act empowered the Secretary of State to remove the restriction on return to the United Kingdom, but it did not empower the Secretary of State to provide the safeguard to that relaxation by enabling an immigration officer to examine the student on his return so as to ensure that he intended to resume his period of study and that his course of study remained open to him, as would be the case with a student arriving with advanced leave to enter to take up a course of study for the first time. This is not a construction of section 3D(2) of the Act which I am able to accept. The terms of Article 13(5) were in my view incidental to Article 13(2) because they had the effect of defining the ambit of the relaxation intended from the effects of section 3(4) of the Act.[33]I accept Mr Malik's submission that the words "incidental" and "supplementary" should not be construed so as to impose the restriction upon returnees beyond that authorised by statute. Article 13(5) was not in my view imposing an additional restriction. It was enabling the relaxation intended by bringing into line those who arrived with leave to enter and those who returned with leave to remain.[34]Subject to my Lords' views, it is therefore unnecessary to consider the respondent's alternative argument that, since cancellation of leave to remain is the equivalent of reducing to extinction, the period of leave remaining Article 13(5) was intra vires section 3B(1) of the Act.[35]As to the legitimacy of paragraphs 10 and 321A of the Immigration Rules, it seems to me that the Upper Tribunal was plainly right to reject the appellant's argument for the reasons advanced on behalf of the Secretary of State.

Ground 2 -- The arguments

[36]Mr Malik takes what he describes as a point of principle arising from the distinction in consequences between exercise of the power and cancellation of leave to enter under Article 13(5), Schedule 2 paragraph 2A(2)(a) and Immigration Rules paragraph 321A and exercise of the power to vary leave to enter or remain under section 3(3)(a) and Immigration Rules paragraph 323A.[37]Mr Malik concedes that application of paragraph 323A to the circumstances of the appellant's case would have entitled the Secretary of State to curtail his period of leave to remain to the extent that it had expired. The grounds for the variation include, in the case of a Tier 4 migrant, the failure of the migrant to commence study with the sponsor and that the migrant has been excluded from his course of studies. Mr Malik argues that the appellant could not conduct an in-country appeal against cancellation, but it could conduct an in-country appeal against variation of his period of leave. As to the latter, section 3D of the 1971 Act specifically extends a period of leave to enable an appeal to be heard. Section 3D does not, on its face, apply to cancellation, which Mr Malik submits is mandatory once the factual threshold for change of circumstances is crossed.[38]If, therefore, the appellant stays in the United Kingdom following cancellation he commits an offence as an overstayer contrary to section 24(1B) of the Act. He would then become liable to removal and detention pending removal under section 10 of the Immigration and Asylum Act 1999. Further, an overstayer would be at a severe disadvantage in making any future applications for leave to enter or remain. Thus it was, Mr Malik argues, procedurally unfair for the Immigration Officer to select paragraph 321A as his means of examining the status of the appellant's studies when paragraph 323A appears designed for just such a purpose.[39]The respondent submits that ground 2 is misconceived. As the Upper Tribunal found, the appellant is deemed by section 11(1) of the Immigration Act 1971 not to have "entered" the United Kingdom. Accordingly he would not, by staying during the period that his appeal was progressing, be an overstayer. Mr Bourne pointed out to us that this court, in R (MK) (Tunisia) v SSHD [2011] EWCA Civ 333, accepted from the Secretary of State in that case a concession that a cancellation of leave to enter was to be treated as the equivalent of a variation of the right to enter or remain. Mr Bourne invited this court to consider so construing the appellant's position. On the other hand he was not instructed to make any such concession in the appellant's case.[40]Mr Bourne submitted that there was no unfairness to the appellant on the facts of the present case since, in the light of the factual background, which is not in dispute, it was well open to the Secretary of State to embark upon consideration whether leave should be cancelled rather than whether it should be varied.

Ground 2 --- Discussion

[41]In my judgment the facts to which I have referred in summary undoubtedly enabled the Secretary of State to consider cancellation of the appellant's leave. I would observe that cancellation is not an automatic consequence of a change of circumstances. The Rule requires that the Immigration Officer should consider whether there has been "such a change of circumstances" that leave should be cancelled.[42]While it may be that there are some disadvantages to the appellant should his leave be cancelled, such as a liability to detention which does not automatically follow a variation of leave reducing his leave to extinction, it does not seem to me that if, on the facts of the case, the Secretary of State properly proceeds to consider cancellation, she is acting in any way unfairly.

Ground 3 -- The arguments

[43]Mr Malik's argument is that the appellant was granted leave to remain on 9 February 2011. He had not joined his course and did not join his course before he flew to Pakistan on 27 February 2011. It follows that there had been no change in circumstances between 9 February when leave was given and 10 April 2011 when he returned to the United Kingdom. There was, therefore, no basis for a conclusion that the appellant's circumstances had changed since leave to remain was given.[44]Mr Bourne points to two critical changes in the appellant's circumstances since leave to remain was given on 9 February. First, having been given leave in order to take up his course at St John's College, the appellant elected not to do so. Secondly, while the appellant was absent from the United Kingdom, the college withdrew its sponsorship and he was unable to take up his place at St John's College on his return. As the Upper Tribunal put it at paragraph 18 of its determination:
"...cumulatively, both factors remove the entire basis on which leave to remain had been granted pending appeal."

Ground 3 -- Discussion

[45]In my judgment Mr Malik's argument fails to grapple with the reality of the appellant's circumstances. Knowing that his leave had been granted to attend St John's College he left the United Kingdom without taking up his place and without informing the college of his intended temporary absence. They had heard nothing from him by 10 April and no fees had been paid. Accordingly the appellant had been removed from the course by the college. In my judgment there was manifestly a material change in the appellant's circumstances since leave had been granted, that the Upper Tribunal was right so to find.

Conclusion

[46]For these reasons I find nothing in the grounds which would justify interfering with the conclusion of the Upper Tribunal and I would dismiss the appeal.[47]I agree with Pitchford LJ. I add one observation on ground 1, the vires ground. The construction for which Mr Malik contended is premised on regarding Article 13(5) of the Order as imposing an additional restriction: that is regarding the person with leave to remain as having a right or an interest which is taken away by Article 13(5). It is, however, clear from section 3(4) of the 1971 Act that the person has no such right or interest. Under that provision a person's leave "shall lapse on his going to" a country outside the common travel area of the United Kingdom. Mr Malik submitted that the qualification “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” means that, under section 3(4), a person's leave does not lapse where he returns before the time at which the leave to remain expires. That, however, gives no meaning to the earlier words of the subsection that the leave "shall lapse" on "his going". At that time it will not be known whether the individual will return within the period of the former leave. The qualification in section 3(4) was said by Mr Bourne to relate to the position where a person has a visa which is deemed to constitute leave to enter and so he does not require such leave. It may, as Pitchford LJ stated, also relate to other changes of circumstances which mean that the person is not required to obtain leave to enter.[48]For these reasons, the regulations which preserved a person’s leave to remain despite his or her departure from the common travel area but do so only in a conditional way do not have to be given the strict and limiting construction for which Mr Malik contends.[49]I agree with both judgments. The appeal is dismissed.

order

"...further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom." By Section 3B(2) the order may in particular provide for: "...(a) the form or manner in which leave may be given, refused or varied; (b) the imposition of conditions; (c) a person's leave to remain in the United Kingdom not to lapse on his leaving the common travel area." By subsection (3) an order made under section 3B may: "(a) contain such incidental, supplemental, consequential and transitional provisions as the Secretary of State considers appropriate; and (b) make different provision for different cases." Section 3B(4) provides that the 1971 Act shall have effect subject to any order made under the section. Order: Appeal dismissed

Cited in 3 later judgments