Cassimkhan, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1292 (Admin)

Case No CO/780/2003Neutral Citation Number: [2003] EWHC 1292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 3 June 2003
Strand
London WC2
B E F O R E:
MR JAMES GOUDIE QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF MOHAMAD FARHAD CASSIMKHANClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M HARRIS (instructed by Raja & Co) appeared for CLAIMANTMR J KENNY (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application made pursuant to permission granted by Sir Richard Tucker on the papers on 28 March 2003 for expedited judicial review of a decision made by the Immigration Service on 31 January 2003, refusing the claimant, Mr Cassimkhan, on his arrival at Heathrow from Mauritius, permission to enter the United Kingdom as a student for 2 years. Mr Cassimkhan is a citizen of Mauritius. He is 28 years old. He arrived from Mauritius on 31 January 2003 at Heathrow and sought leave to enter the United Kingdom as a student for two years. At the time of the application, as a Mauritian, he was not required to obtain entry clearance before applying upon arrival in the United Kingdom for leave to enter. He had, however, on 31 December 2002, one month before arriving in the United Kingdom, been refused permission to enter the United Kingdom by the Immigration Officer at the High Commission in Mauritius on the grounds that he had no genuine intention to undertake a course of study, had no intention of leaving the United Kingdom at the end of his course and did not have sufficient means to support himself during the course.[2]Mr Cassimkhan left school at the age of 16 in 1990. On leaving school he joined the local bus company as a electrician. He remained employed by them until he left for the United Kingdom in January 2003. When aged 20 he did a one-year part-time course in motor electrics, otherwise he has had no education since leaving school. In particular, he has taken no course in English to prepare himself for studies in this country. Mr Cassimkhan arranged to attend Richmond Adult Community College. By receipt dated 20 September 2002, the College confirmed that he had paid a deposit of £200 to study a course in English as a foreign language between January and July 2003. Mr Cassimkhan presented this written confirmation to the Immigration Service upon his arrival at Heathrow. It is also Mr Cassimkhan's stated intention, having completed the English language course, to study for a Motor Technician Diploma in the United Kingdom. He produced a letter dated 20 December 2002 from Seeday International Recruitment Agency. Mr Cassimkhan explains that the purpose of the training is to get a good job as a motor technician in Mauritius; a better job to that he already has. He says that the reason why he needs to come to the United Kingdom to study motor mechanics is that they do not have a good institution to teach motor technician diplomas in Mauritius.[3]The notice of refusal by the Immigration Officer, Lorraine Crockett, was as follows:
"You have asked for leave to enter the United Kingdom for two years in order to study English at Richmond College and motor technician at Brookland College, but I am not satisfied that you are a genuine student who intends to leave the United Kingdom on completion of your studies. I therefore refuse you leave to enter the United Kingdom."
[4]Part 3 of the Immigration Rules relates to persons seeking to enter or remain in the United Kingdom for studies. Paragraph 57 sets out the 6 cumulative requirements for leave to enter the United Kingdom as a student. They are: "(i) [The student] has been accepted for a course of study at:(a) a publicly funded institution of further or higher education; or(b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or(c) an independent fee paying school outside the main sector.[5]The second requirement is that the applicant is able and intends to follow either: "(a) a recognised full-time degree course at a publicly funded institution of further or higher education; or (b) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised day time study per week, one single subject or directly related subject; or (c) a full-time course of study at an independent fee paying school.[6]Requirement (iii) is that:
"If under the age of 16 years the applicant is enrolled at an independent fee paying school on a full-time course of studies which meets the requirement of the Education Act 1944; and (iv) intends to leave the United Kingdom at the end of his studies; and (v) does not intend to engage in business or to take employment except part-time or vacation work undertaken with the consent of the Secretary of State; and (vi) is able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds."
[7]It can be seen therefore that the notice in this case is expressed in terms of paragraph 57(iv); that is, that the applicant does not meet the requirement that he intends to leave the United Kingdom at the end of his studies. Paragraph 58 relates to leave to enter as a student. It provides that:
"A person seeking leave to enter the United Kingdom as a student may be admitted for an appropriate period depending on the length of his course of study and his means, and with a condition restricting his freedom to take employment provided that the Immigration Officer is satisfied that each of the requirements of paragraph 57 is met."
[8]Paragraph 59 deals with refusal of leave to enter as a student. It states that:
"Leave to enter as a student is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 57 is met."
It is common ground that any refusal by the defendant has to be for reasons within paragraph 57. Lorraine Crockett says that she refused the claimant leave to enter the United Kingdom in accordance with paragraph 59.[9]Three grounds for judicial review have been advanced. The first is that the defendant did not consider the application in accordance with the requirements of paragraph 57(ii). The argument in support of this ground proceeds as follows in Mr Harris' statement. The notice states that the respondent has decided that the appellant is not a "genuine student" but the decision does not refer to the terms of any of (a), (b) or (c) in paragraph 57(ii). No further explanation is given in the notice of what is meant by "genuine student". In her statement, Ms Crocket refers only to making a decision that Mr Cassimkhan is not a "genuine student". Nor does she refer to, or mention, applying the provisions of paragraph 57(ii) in reaching her decision. Accordingly, it is submitted that the defendant has not considered the application in accordance with lawful requirements. It is further submitted that Mr Cassimkhan does meet the criteria of paragraph 57(ii)(b); that is, that he is able and intends to follow a week day full-time course involving attendance at a single institution for a minimum of 15 hours organised day time study per week of a single subject -- that subject being initially English as a foreign language. In oral submissions, Mr Harris had made the point that there is no test as such of being a genuine student and that to apply such a test would be wrong in law and that the sole ground of refusal expressed in the notice was number (iv) -- intends to leave the United Kingdom at the end of his studies, and therefore, other grounds, for example (vi) relating to ability to meet costs and so forth cannot be relied upon. I reject this ground as a matter of interpretation of the language of the written refusal of leave to enter which I have already quoted. There is nothing to suggest that Ms Crocket was even trying to apply paragraph 57(ii). On the contrary, she is, as I read the notice, making a finding of fact -- that is, that Mr Cassimkhan is not a genuine student, as accessory to her finding, and indeed her conclusion, that he does not intend to leave the United Kingdom on the completion of his studies, ie a conclusion in terms of not paragraph (ii) but paragraph (iv). In any event, even if Ms Crockett did misdirect herself in the respect alleged, nevertheless she refused leave on the ground, at least, that Mr Cassimkhan does not possess a genuine intention to leave the United Kingdom on the completion of his studies and, therefore, falls to have entry refused on the ground falling squarely under paragraph (iv), therefore the point that if it were the case that he was refused leave in addition for an inadmissible reason by reference to being a genuine student, being set up as an alternative head of refusal, would in any event get the claimant nowhere.[10]The second ground was that the defendant took into account irrelevant matters; they being Mr Cassimkhan's previous failed attempts to obtain entry clearance -- one in December 2002 to which I have referred, and an earlier occasion on 16 March 2000 when he was refused entry clearance as a visitor. This ground has not, in the event, been pursued and I need say no more about it.[11]The third ground added by, in effect, amendment is that the refusal under paragraph 57(iv) was irrational; that is, not properly and adequately reasoned rather than perverse, when the claimant, Mr Cassimkhan, has satisfied the requirements of 57(vi). The argument in support of this ground proceeds as follows. Given the reasons variously provided by Ms Crockett which focus on present financial circumstances of Mr Cassimkhan, her refusal under paragraph 57(iv) is irrational when, it is suggested, Mr Cassimkhan has satisfied the requirements of paragraph 57(vi). It is submitted that if the claimant has arranged necessary funds for his time as a student, will not seek illegal employment and will abide by the conditions of his leave, then all that is indicative of the likelihood of his intention to leave upon completion of his studies and so strengthens his case to meet the requirements of paragraph 57(iv). If the previous refusals were not taken into account when making the decision to refuse, then it is submitted that the remaining reasons relied upon substantially concern the claimant's financial situation upon arrival. Mr Harris, for Mr Cassimkhan, draws attention to the reasons given in the case summary for deciding that Mr Cassimkhan was not a genuine student and to the reasons given in Ms Crockett's witness statement. Mr Harris, basing himself on the fact that the defendant has not been refused under paragraph 57(vi), submits that Mr Cassimkhan has satisfied the defendant that he is able to meet the costs of his course and accommodation and the maintenance of himself and any dependent without taking employment or engaging in business or having recourse to public funds, so that the defendant has accepted therefore that the claimant is able to provide for himself and will not seek to obtain illegal employment, and that any rational and lawful consideration of Mr Cassimkhan's intention to leave which concentrates on his current financial circumstances should take into account that these financial circumstances have satisfied the defendant for the purposes of paragraph 57(vi). I reject this ground also, again essentially for the reasons advanced by Mr Kenny on behalf of the defendant. Firstly, the fact of Mr Cassimkhan not being refused leave to enter under 57(vi) does not mean that it must be taken to have been accepted that the terms of 57(vi) were not satisfied. Secondly, the claimant had not, in Ms Crockett's estimation, satisfied the requirements of paragraph 57(vi). It is quite clear that one of the matters which Ms Crockett had in mind when refusing leave to enter was want of means and therefore failure to satisfy the requirements of paragraph 57(vi) -- lack of means being material, of course, not only in relation to requirement (vi) but also in the context of requirement (iv). Thirdly, in any event, Ms Crockett's refusal under paragraph 57(iv) is not irrational in any sense. There was evidence to support her conclusion that Mr Cassimkhan had no genuine intention to leave the United Kingdom on the completion of his studies. That is evidence in addition to the question of his ability to meet costs. With regard to whether or not there was an intention to leave the United Kingdom at the end of his studies, the underlying facts as found by Ms Crockett included that, firstly, Mr Cassimkhan had little knowledge as to where his studies might lead him in terms of career opportunities. Secondly, that he was unable to be specific about how qualifications obtained in this country would enhance his job prospects in Mauritius. Thirdly, and in my judgment importantly, he had not prepared for his studies by taking an English course in Mauritius and his evidence as to why he had not done so was not credible, and fourthly, he was not a genuine student. Having, therefore, for these reasons rejected both extant grounds, I dismiss the application for judicial review. Any consequential matters?[12]MR HARRIS: No application for the claimant, my Lord.[13]MR KENNY: No application for the defendant, my Lord.[14]THE DEPUTY JUDGE: Thank you both very much.