Boahen, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1407 (Admin)

Case No CO/10696/2008[2009] EWHC 1407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 5 June 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF DANIEL OWUSU BOAHENClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr R Fortt (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: The claimant in this case is from Ghana. On 26 January 2008, he was issued with an entry clearance to enable him to visit this country on as many occasions as he wished, it being a multi-entry visa, until January 2010. However, he was only to be allowed to enter on the basis of being a visitor, and so complying with the rules relating to visits, and he should not remain for more than 180 days on any one visit.[2]He entered this country initially, it is said by the Home Office, on 13 January 2008. He makes the point that since that date was before he had the entry visa it is unlikely to be accurate. That may well be so. He accepts that he did enter at the end of January 2008. I am prepared to assume that that was the relevant date. The six months would thus have expired by the end of July 2008. He did not leave when he should have done and in fact he remained here until October 2008.[3]The reason why he did not leave, he says, was because he was ill. When asked to produce a medical report he did so, but it is a report that is dated September, some considerable time after the 180 days expired. He has told me that the reason for that was because he was feeling ill at the relevant time: not ill enough to visit a doctor until September, but ill enough nonetheless to mean that he was not in a position to return to Ghana. Unfortunately he did not seek any advice about that, nor did he visit the Home Office or the Immigration Service in order to explain the situation and to obtain permission to remain longer than the 180 days. The result therefore is, I fear, that he was an overstayer and he was acting in a way that he was not entitled to act.[4]However, having left and gone back to Ghana in October he sought to return to this country on 4 November 2008. He was then interviewed at the port, which was Gatwick. There is a dispute as to what he said in the course of that interview. The record I have shows that he was coming for six weeks to see his uncle and to take care of his uncle's children. He said he was asked why he needed to return, having so recently been in the United Kingdom, and he replied:
"Because my uncle wanted me back - he wants me because I'm the only one who can look after the children."
He explained that he overstayed because he was feeling ill and he said that he had seen a doctor. The officer said that his uncle stated that he had stayed with him from January to October and stayed only one month:
"[Q]... Why? [A] I don't know - my uncle sometimes drinks."
He said he stayed with his uncle and looked after his uncle's children on the other occasion. He was asked whether his uncle would provide him with food, accommodation and money for looking after his children and he said that he would.[5]As I have indicated, the claimant denies that he ever said anything of the sort. He was never coming to be paid, although he would have helped his uncle out by looking after the children as necessary, but not on the basis that he would be paid and thus would be treated as doing work in this country. That is an issue of fact which it is not open to me to decide.[6]The Immigration Officer refused him leave to enter on 4 November. The notice there stated:
"On the 13 January 2008 you were given leave to enter the UK as a 'Visitor' but you did not leave until 04 October 2008 which is in breach of the 180 day limit endorsed on the visa. I am thus satisfied that you have failed to observe a condition attached to your stay in the UK, the visa conditions clearly state this. Furthermore you stated that you are in the UK to take care of your uncle's children and you will be given money and accommodation for this. I therefore cancel your leave to enter under paragraph 2A of the Immigration Act 1971 and paragraph 321(i) of the Immigration Rules (HC395)."
He was refused leave to enter also because he did not have an entry clearance for the purpose of working here.[7]The question of cancellation is covered in paragraph 321A of the Immigration Rules. Paragraph 321(i) on which the officer appeared to rely in cancelling leave does not apply in respect of cancellation and so that original notice was clearly, in that respect, invalid. Section 321A, however, states that:
"The following grounds for the cancellation of a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply: (i) there has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled..."
There are various other grounds (conducive, and so on) which are not material for the purposes of this case.[8]No doubt recognising that the cancellation of the leave (that is the cancellation of the visa) was not permitted by the rule upon which the notice purported to rely, the Immigration Service, or the Border Agency, served a further notice on 11 November. This stated:
"On the 26th January 2008 in Accra you were issued with a United Kingdom entry clearance endorsed 'visit' but I am satisfied that there has been such a change of circumstances in your case since the leave was granted that it should be cancelled. The change of circumstances in your case is that you obtained leave to enter as a visitor for five weeks to visit your uncle, Kwadwo Duodu Owusu but you have stated that you are now seeking entry for six weeks for the purpose of taking care of your uncle's children and that you will be given money and accommodation for doing so, which amounts to paid employment. Mr Owusu has stated that you will stay for two to three months. I note that you last entered the United Kingdom as a visitor on the 13th January 2008 but you did not leave until 4th October 2008, thereby overstaying by almost 3 months the 180 day limit endorsed on your visa. You claim this was because you did not feel well and had to consult an NHS doctor, but you produced no evidence of this. You also claimed that your uncle could not afford to change your return ticket. I therefore cancel your leave under the relevant paragraph 2A(8) of the Immigration Act 1971 and paragraph 321A(1) of the Immigration Rules (HC395)."
[9]That at least referred to the correct rule, so far as cancellation of the visa was concerned. The question is whether there had been, within the meaning of paragraph 321A on the grounds relied on, such a change of the circumstances since leave was given that it should be cancelled. The Home Office has issued guidance and in relation to change of circumstances this is said:
"Paragraph 321A(1) applies where there has been a change of circumstances in a person’s case since the leave was such that it should be cancelled. Examples of such a change of circumstances would include the withdrawal of an offer of employment in the case of a person with an entry clearance for "
Employment", the withdrawal of sponsorship in a student case or the permanent departure from the United Kingdom of the sponsor of a child coming for settlement."[10]What is clear from that is that the fact, if it be a fact, that a particular entry is sought for a purpose which is not covered by the existing visa does not of itself mean that cancellation of the visa is justified. It is only if the material persuades the Immigration Officer that there is now a permanent desire, or permanent intention, not to use the visit visa for proper visits, but only for visits which are going to be in breach of the terms of visit because they are going to be for employment, that then, and only then, can the revocation of the visa properly be put into effect.[11]Equally there is nothing in rule 321A which permits cancellation purely on the basis that there has been a breach of a condition on a previous visit, so that the overstaying again by itself would not justify cancellation of the visa. However, what was put to the Immigration Officer on his account justified a refusal of leave to enter. Equally the previous overstaying would justify such a refusal on the basis that the officer was not satisfied that he intended to enter purely as for the term that he was permitted as a visitor. That again would be a possible justification of refusal of leave to enter.[12]Accordingly, although I take the view that the Immigration Officer could have spelt out, if he had chosen to do so, a proper basis for a cancellation, he did not do so and one has to take his reasons at face value. Those reasons given do not justify the cancellation of the visa. However, as I say, I have no doubt that the refusal of leave to enter was lawful.[13]The law provides for an appeal on the facts, but that is an appeal which can only be exercised out of country. Thus, if the claimant wishes to maintain the visa and to come back to visit this country in the future, what he has to do is to leave the country and to lodge a Notice of Appeal once he gets to Ghana. The matter will then be considered by the Asylum and Immigration Tribunal on the facts.[14]Equally he is of course perfectly entitled to come back to seek leave to enter with the visa, but I think he must appreciate that unless he appeals successfully the chances of him being allowed in are infinitesimal. In those circumstances I will grant him relief on the basis that I will quash the decision to cancel his visa, but I will not cancel the decision to refuse him leave to enter and he must leave this country as soon as may be.[15]THE APPLICANT: Thank you, my Lord.

MR JUSTICE COLLINS: To that extent, and that extent only, this claim succeeds.

[17]THE APPLICANT: Thank you, my Lord.[18]MR FORTT: There is the issue of costs.

MR JUSTICE COLLINS: I think the appropriate order would be no order.

[20]MR FORTT: Very well.[21]MR JUSTICE COLLINS: I think you recognise that the fair way of dealing with it is to say no order for costs.[22]THE APPLICANT: I do, my Lord. Thank you, my Lord.