Diffa, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1734 (Admin)

Case No CO/848/2006[2008] EWHC 1734 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27 June 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE UNDERHILL
Between
THE QUEEN ON THE APPLICATION OF DIFFAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr John O'Flaherty (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE UNDERHILL: The claimant in these judicial review proceedings is a Nigerian national. She is now aged 29. On 2 February 2000 she was given leave to enter this country as a student. She subsequently received extensions covering the period up to 30 April 2005. On 27 May 2005 she was granted a further extension of her leave to remain in the United Kingdom as a student until 30 July 2006 on the basis that she was to undertake an MBA degree at the West London College commencing on 26 July 2005. She was in fact, at the time that that extension was granted, pregnant, though she says she did not know it.[2]On 9 July 2005 the claimant went back to Nigeria to attend her mother's funeral. She returned to the United Kingdom on 28 July. That was a couple of days after the start date of her course, but she did not commence her studies. She said that she was having difficulties with her pregnancy and found it impossible to start work and that the college agreed to defer the start of the course. She did not seek any change to the basis of her leave to remain. Accordingly, from that point onwards, she was in breach of her conditions for leave to remain.[3]On 10 November 2005 the claimant left for the United States where a sister is living. Her daughter was born there on 18 December 2005. On 26 January 2006 she returned to this country with her baby daughter. She arrived at Gatwick. What happened there is set out in a witness statement of Sabia Noor, an immigration officer, dated 16 May 2008, at paragraphs 5 to 9:
"5 The claimant arrived from Houston on 26 January 2006, accompanied by her baby daughter, Disemokumo Zoe Ogoroye. She presented a Nigerian passport which contained an extant UK residency permit, issued at Croydon on 27 May 2005 valid until 30 July 2006. Her daughter held an American passport which contained no endorsements. 6 The claimant sought re-admission into the Uk to continue her studies at West London College, which she stated was supposed to have started June/July 2005. She also sought entry on behalf of her daughter as a student dependant. The claimant's passport showed that she had been in the USA for two months. 7 In the course of her initial interview on 26 January 2006, which took place between 1100and 1400 hours, the claimant stated that: she had returned to the UK to recommence her course in January 2006; she had taken time out from her studies; had travelled to Nigeria between June 2005 and July 2005 and another time after; and did not know the address of the college. 8 At 1420 hours Immigration Officer Silvia Dominguez made further enquiries with the West London College. The college confirmed that the claimant had been registered on an MBA course that commenced in May 2005, but she had not attended a class; the claimant contacted the college in August 2005 to inform them that her mother died on 25 July 2005 and she would be attending classes; the claimant contacted the college again on 12 October 2005 advising that she would not be able to attend the course because she was pregnant, and requested time off from her course. On 31 October 2005 the college received a letter from the claimant's GP confirming she was pregnant and the date of confinement as 25 December 2005; the claimant wanted to postpone her course until July 2006. 9 At 1714 hours the claimant was re-interviewed. She stated that she did not start her course in June/July 2005 because her mother passed on 25 June 2005; she travelled to Nigeria for a month; she did not start her course when she returned from Nigeria because she had experienced difficulties with her pregnancy for a few weeks; she was asked by her college to obtain a letter from her GP, and she confirmed that she asked for a six-month extension to start her course. When the claimant was asked why she had not returned to Nigeria between July and November 2005, and November 2005 and July 2006 when her course starts, she stated that ante-natal care was better in the UK than in Nigeria and she might return to Nigeria with her husband although she had no definite plans. She also stated that her daughter would remain in the UK while she studied."
[4]The claimant was issued with a Form IS 125 cancelling the leave to enter (or perhaps, more strictly, leave to remain) granted on 27 May 2005. The reasons given in that form summarise the history, making the points(a) that her studies could not resume until July 2006 and she could not explain what she wished to do in the UK until then and(b) that between November and July 2005 she had been in breach of her conditions of entry. There was also reference to the fact that the man she said was her husband - Mr Ogoroye - had applied for a student visa in late 2005 but had been refused. He had described himself in that application form as single. Her daughter was likewise refused leave to enter. Her rights were of course dependent on her mother's. Notice in Form IS 82A was also given setting removal directions to Nigeria on 30 January 2006. She was notified that she had no in-country right of appeal.[5]The claimant contacted solicitors who on 27 January 2006 - that is the next day - wrote on her behalf to the Home Office, asking that the decision be reversed and that the claimant's leave to remain as a student be restored. Essentially their case was as follows:
"We submit that there is nothing in the facts of our client's case in the evidence in support that indicates that our client did not intend to seek leave into this country as a visitor. It is our opinion that your decision to refuse leave as well as cancel our client's existing leave were made purely on suspicion rather than fair assessment of the facts of our client's case."
As regards the prior breach, they referred to compassionate circumstances, specifically the claimant's problems with her pregnancy and stresses caused by her recent bereavement.[6]By letter dated 29 January 2006 a chief immigration officer refused to alter the decisions taken on 26 January and maintained the reasons then given. However the claimant was notified of a change to the removal directions which was explained as follows:
"There is however a significant change to the removal directions in this case for which we have been trying unsuccessfully so far to apprise your client. Since her daughter has a United States passport she will be inadmissible in Nigeria without a visa. We thus have no option but to set removal directions for both Miss Diffa and her daughter with the in-bound carrier back to the USA."
[7]On 30 January 2006 the claimant lodged these proceedings for judicial review. The decision formally challenged in the claim form was that contained in the letter of 29 January 2006, rather than the original decisions of the immigration officers at Gatwick, but nothing turns on that distinction. Various points were made, but the central ground advanced was it was not the case that the claimant could not resume her studies until July 2006. The grounds stated in particular - "We submit that from the claimant's evidence at her interview with the immigration officer as well as the available documentary evidence of her studies, it is clear that the claimant's actual resumption date as arranged with the college was for 26 January 2006, hence the claimant's timed journey from the US back to the UK on 27 January 2006." That is confirmed in the statement of facts which, so far as relevant, reads as follows:
"The claimant travelled to the United States of America where she had her daughter on 18 December 2005. The claimant returned back to the United Kingdom on 27 January 2006 with the aim of arranging for her daughter to be taken to Nigeria by the claimant's husband who is the father of the child. The claimant made this arrangement in order to be able to recommence her Masters programme in January 2006. The claimant has been granted permission by her college to recommence her Masters programme sometime in January 2006. The claimant therefore planned her return from America to coincide with the start date of her Masters programme. The claimant will rely on a written confirmation from West London College confirming this fact."
[8]On 24 May 2006 Mr Justice Fulford gave permission to apply for judicial review. In his observations he said this:
"A material part of the decision contained in the letter of 29 January 2006 relates to the suggestion that the relevant course does not commence until July 2006: 'I understand that the course at West London College recommences in July this year ..... ' This appears to be an erroneous conclusion, on the evidence that has been provided."
[9]It appears that in the meantime the claimant had started her course. A letter dated 21 March 2006 from West London College addressed "To Whom it may Concern" identified Miss Diffa and stated:
"This letter is to confirm that the above named is registered on a full time course of study at this college leading to the Heriot-Watt University Master's Degree in Business Administration, and has paid £1,500.00 towards the total fee of £2,550. The course commenced on 2 February 2006 and will terminate with the examination results due in August 2007."
That letter identifies the start of the course rather than stating explicitly that the claimant began to attend the college on that date. But it is the claimant's case, as I understand it, that she did begin to work then (or it may be in March 2006).[10]To take the rest of that story forward, two subsequent letters from the college dated 22 April 2008 and 11 June 2008 record that the claimant - notwithstanding the fact that the course was originally intended to last only 18 months - is still pursuing it. She has so far, and only recently, taken five exams, for which the results are not yet known. She is scheduled to take a sixth in August and the remaining two in December, with the results being expected in February 2009. It is not entirely clear why the course has taken so long. I understood from what the claimant told me in the course of the hearing that she had had a number of difficulties and her attendance record had at first been poor, she says, because of the difficulties in bringing up her daughter. The letter from the college suggests that her rate of attendance has improved although it is still not particularly good: in the most recent term she had attended 62 out of 78 classes.[11]The case was originally listed for hearing on 19 February 2007. It was taken out of the list at the request of the Treasury Solicitor (though with the claimant's solicitors' consent) because, surprisingly, of the unavailability of counsel whom the Treasury Solicitor wished to instruct. It was not re-listed until 2 May 2008. I have not been able to obtain any explanation for that remarkable further delay.[12]On 2 May Mr Justice Sullivan adjourned the hearing because, most regrettably, the defendant had failed to disclose the records of the interviews and investigations carried out by the immigration officers at Gatwick in January 2006. Mr Justice Sullivan made an order that the defendant should serve and file further evidence by close of business on 16 May and that the claimant should serve and file evidence in response by close of business on 6 June. At that stage the claimant was represented by counsel and solicitors. In accordance with that order the defendant duly served the witness statement from Miss Noor to which I have referred; but the claimant has lodged no further evidence of her own (except that she has today shown me the two recent letters from the college referred to above.[13]The claimant is no longer represented and she has appeared before me in person. I do however have the advantage of the skeleton argument prepared by counsel who was instructed on her behalf at the time of the hearing before Mr Justice Sullivan. She has adopted the submissions made in that skeleton argument. (I should also mention for the record that, due to what she tells me was a breakdown in child care arrangements, she was obliged to bring her daughter into court. Fortunately the daughter has been immaculately behaved and has not distracted the court or, insofar as I can tell, the claimant herself).[14]The issue raised by this application is whether it was lawful for the immigration officers to make the decisions which they did on 26 January and 29 January cancelling the claimant's leave to enter/remain, and refusing her daughter leave to enter, and subsequently upholding those decisions. That question is in fact, for immediate purposes, wholly academic. Even if the claimant's leave to remain should not have been cancelled, it would have expired in any event at the end of July 2006 and no further leave to remain has been granted. The claimant would therefore in any event have no right to remain in the UK beyond that date. I have considered whether that is a sufficient ground for dismissing the application. However I do not think that I should decide the case on that limited basis, not least because the cancellation of the claimant's leave to enter/remain would remain part of her immigration record.[15]Mr O'Flaherty, for the defendant, submitted that the legal basis for the cancellation was two-fold.[16]First, he said that the immigration officer formed the view that the claimant was not proposing for the remainder of the period covered by the leave to enter to pursue the course of studies which was the basis on which that leave had been granted. That made the original leave liable to be cancelled under paragraph 2A (2) (a) and/or paragraph 2A (2A) of Schedule 1 to the Immigration Act 1971. The point which troubled Mr Justice Fulford, and is the principal point taken in the grounds, is that on the evidence as it was, and as was lodged in the grounds, the claimant had arranged to recommence her studies forthwith on re-entry, so that the immigration officers had been wrong to proceed on the basis that nothing had been arranged until some six months into the future.[17]As to that point, Mr O'Flaherty relies on the evidence of Miss Noor, which was not before Mr Justice Fulford, supported as it is by the contemporary notes of the immigration officers at Gatwick. These show that although the claimant does indeed appear to have said when first questioned that her studies were due to resume in January, i.e. forthwith, inquiries which were made with the college later in the day elicited contrary information. I should read specifically from the note which records a telephone call made to the college: the officer was told that she (the claimant) called the college - "on 12 October 2005 and requested the course be postponed as she was pregnant. On 31-10-05 she produced a GP's letter stating she was pregnant and due to give birth 25-12 (she must have got pregnant in March 2005). She said she wanted to postpone the course until July 2006." It was that response which was the basis of the immigration officer's belief that the claimant was not intending to study in the first half of 2006. Following that call to the college there was a further interview. Although the response from the college was not put to the claimant in terms, she was asked (question 33):
"Q Intend to continue studies? A Will discuss with father when he comes." (I should say that the previous answer elicited that she was expecting her husband to arrive in England in the next day or two.) Question 46 was: "
Q What do between Nov - Jul 06? A Might go back to NGA [Nigeria] with husband." I have asked the claimant about those responses but I got no very clear answer beyond her re-assertion that she had initially told the immigration officers that she was due to re-start her course in January.[18]In the absence of any rebutting evidence of the kind provided for by the order of Mr Justice Sullivan, I do not believe that I ought to go behind the contemporary record. On that basis I believe that the decision of the immigration officers that the claimant was not intending to study until July 2006 was unimpeachable. There was a clear evidential basis for it, both in what they had been told by the college and in the claimant's own answers.[19]The position was not significantly different when the matter was reviewed for the purpose of the defendant's letter of 29 January 2006. The letter from the claimant's solicitors, to which that was a response, had not grappled with the question of when she was due to resume her studies. It had only stated:
"The college being aware of our client's situation deferred our client's studies to be recommenced within a reasonable time."
[20]It is fair to say that in a letter replying to the defendant's letter of 29 January, the solicitors did specifically address the question of when the course was due to start. They said:
"We note your statement that our client's programme at West London College is due to be commenced in July 2006. Although we do not know where you got your information from, but we submit that our client is meant to recommence her programme on 17 January 2006, our client has however been granted permission by the college to resume a bit late until about a week or two after the course has commenced. Our client's arrival on 26 January was therefore aimed at meeting the resultant date as agreed with the college."
But that information, even if it is otherwise reliable - and it is not entirely in accordance with what is said elsewhere - was not before the defendant when either of the decisions challenged was taken.[21]Having reached that conclusion, I think I should make clear that it does not necessarily follow that the view taken by the immigration officers - i.e. that the claimant was not intending to study at all between January and July 2006 - was correct. All that I have found is that their view was entirely reasonable on the material before them. The letter subsequently produced by the college, to which I have referred, may support her account that she did in fact start work in February or March, though that is certainly not definitively established. If the Secretary of State had been shown cogent evidence that the initial decision, though reasonable on the material available, was in fact wrong then she might have had to make a further decision. But that never occurred. In any event, all that is now water under the bridge.[22]I turn to the second basis on which Mr O'Flaherty says that the decision was taken: that is that the claimant was liable to administrative removal under Section 10 of the Immigration and Asylum Act 1999 and paragraph 395D of the Immigration Rules because she had been in breach of the conditions of her leave to enter/remain during the period from July to November 2005 when she had not been studying. The claimant accepts that she was not studying during that period, but she explains that by reference to the difficulties with her pregnancy and recent bereavement to which I have already referred.[23]I cannot say that the defendant's decision to rely on that breach was either unfair or irrational. The Home Office might - if applied to at the time - have been prepared to alter the basis of the claimant's leave to remain on compassionate grounds, but it was the claimant's obligation to notify the defendant of the change in her circumstances and she did not do so. I would add that the material before the immigration officers on 26 January and subsequently provided by the claimant's solicitors about difficulties with her pregnancy was, in any event, extremely scanty. It amounts to no more than the fact that in late October - two months after her course started - she was complaining of mild bleeding and was advised to rest.[24]A further point made in the claimant's counsel's skeleton argument - that is that her immigration history up to that point had been impeccable - could not be sufficient to render invalid an otherwise proper decision.[25]The final point made by the claimant's counsel in his skeleton argument is that it was unlawful for the defendant to seek to return the claimant to the United States rather than to Nigeria. Mr O'Flaherty confirmed to me that the final paragraph of the defendant's letter of 29 January, which I have already quoted, was simply a mistake on the defendant's part. It is accepted that their first thoughts were correct and that the appropriate country to which to remove the claimant and her daughter was Nigeria, and there would be no obstacles to her daughter being admitted to Nigeria notwithstanding having an American passport.[26]For all those reasons, I consider this claim to be ill-founded and it is dismissed.[27]Thank you, Mr O'Flaherty. Thank you Miss Diffa. That is the end of it. I have dismissed your claim. You will have to wait and see what steps the Home Office wishes to take.[28]MR O'FLAHERTY: In the acknowledgement of service there was a request that the claim be dismissed and that the claimant pay the defendant's costs of preparing service in the amount routinely assessed of £480.[29]MR JUSTICE UNDERHILL: I thought I might get that application. I do not propose to grant it. I suppose I must give you an opportunity to respond but my initial view is that it would be wrong to do so because, if the Secretary of State had promptly provided to the claimant and her advisers the material that was belatedly produced, there must be a decent chance - I appreciate it is not a certainty - that this claim would never have been brought and certainly would not have proceeded as far as it has.[30]It does not seem to me to be right in those circumstances that an order for costs should be made. I rather announced the decision without you trying to persuade me to the contrary. You are welcome to try.[31]MR O'FLAHERTY: It is a simple application. I am not going to press it.