Gumama, R (on the application of) v Entry Clearance Officer, Manila [2009] EWHC 2583 (Admin)

[2009] EWHC 2583 (Admin)Case No CO/9642/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/10/2009
Before
MR TIMOTHY BRENNAN QCsitting as a Deputy High Court Judge
Between
THE QUEENClaimanton the application ofClaimantOMAIRAH CALAMATA GUMAMAClaimantENTRY CLEARANCE OFFICER, MANILADefendant
Mr Tim Buley (instructed by Duncan Lewis & Co) for ClaimantMr David Manknell (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 8 October 2009
Judgment

Mr Timothy Brennan QC :

[1]In this application for permission to apply for judicial review the claimant, a national of the Philippines, seeks to challenge the decision of the Entry Clearance Officer, Manila (the ECO) to refuse her entry to the United Kingdom as a student. The relevant decision was made on reconsideration of her application and was recorded in a letter of 28 August 2009.[2]Having received written and oral argument, I consider the claim to be arguable and I therefore grant permission to apply. Having done so, and in accordance with an earlier order of the court, I shall deal immediately with the substantive application.[3]The Secretary of State for the Home Department was also joined as a defendant. It was common ground before me that the appropriate defendant is the ECO. I dismiss the claim against the Secretary of State.

The original entry clearance application

[4]The Claimant is now aged 37. She qualified as a pharmacist at a university in the Philippines but she has most recently worked at managing her family’s coconut farm. On 27 August 2008 she applied under paragraph 57 of the Immigration Rules (HC395) for leave to enter the United Kingdom as a student. The supporting documentation indicated that she wished to come to the United Kingdom to follow a course of study in Business Management offered by an institution called Cambridge College of Learning, of 151-153 Curtain Road, London EC2.[5]Part 3 of the Immigration Rules is entitled ‘Persons Seeking to Enter or Remain in the United Kingdom for Studies’. At the relevant time, and so far as relevant, Part 3 included paragraph 57, in the following terms “REQUIREMENTS FOR LEAVE TO ENTER AS A STUDENT 57. The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:(i) has been accepted for a course of study … which is to be provided by or undertaken at an organisation which is included on the Register of Education and Training Providers, and is at either; (a) …. (b) a bona fide private education institution; or (c) …; and(ii) is able and intends to follow either: (a) … (b) …; or (c) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or (d) …; and(iii) …(iv) … (v)…; and (vi) intends to leave the United Kingdom at the end of his studies; and (vii) 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 (viii) 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; and (ix) holds a valid United Kingdom entry clearance for entry in this capacity.” (a) ….

(d) …; and

[6]The term bona fide private education institution used in paragraph 57(i)(b) is defined in paragraph 6 of the Rules, which lists relevant objective criteria.[7]Counsel were not able to refer me to any provision of the Immigration Rules which defined the meaning of the term “Register of Education and Training Providers” as used in paragraph 57(i). A clue as to the identity of the keeper of the Register may be provided by Paragraph 56K(ii) (student visitors) which refers to the “Department for Education and Skills’ Register of Education and Training Providers”.. By the date of consideration of the claimant’s application, there was a register of education providers maintained by the Department for Innovation, Universities and Skills (DIUS). Counsel invited me to proceed on the basis that, so far as the relevant Register is concerned, nothing turns on changes in nomenclature or keeper, and I do so.[8]On seeking leave to enter as a student, the effect of paragraph 57 was that the claimant could be granted leave only if the necessary conditions were met. She had to be accepted for a course of study by an institution which appeared on the Register. As well as appearing on the Register, the institution had also to be a bona fide private education institution as defined. She had to intend to leave the UK at the end of her course of studies. She had to be able to support herself without access to public funds.[9]Paragraph 59 of the Rules provided that leave to enter as a student was to be refused if the Entry Clearance Officer was not satisfied that each of the requirements of paragraph 57 was met.[10]In a Notice of Immigration Decision, not dated but apparently issued on 10 October 2008, the claimant’s application was refused on a number of grounds. In summary this was because, according to the ECO:• Cambridge College of Learning was not a bona fide educational institution (para 57(i)(b));• He was not satisfied that the claimant intended to follow the course (para 57(ii));• He was not satisfied that the claimant intended to leave the UK at the end of her studies (para 57(vi)); and• He was not satisfied that she was able to meet the cost of the course and maintain and accommodate herself without recourse to full-time employment or public funds (para 57(viii)). In addition, the ECO refused leave, without giving any details at all, on the grounds that the claimant had, in February 2005, previously been refused entry clearance for using deception by submitting false documents. This would be a reason for automatic refusal of her application for the following 10 years, under paragraph 320(7B).

The appeal to the AIT

[11]The claimant appealed under s 82(1) of the Nationality, Immigration and Asylum Act 2002 to the Asylum and Immigration Tribunal (AIT). By s 85(5)(b) of that Act, on that appeal the AIT was limited to consideration of circumstances appertaining at the time of the decision to refuse. There was a hearing before Designated Immigration Judge Manuell on 28 April 2009. The ECO was neither present nor represented and produced no documents and no evidence. Oral evidence was given by the claimant’s sisters, who live in London and who produced financial and other documentation. They said that they were willing and able to support the claimant, who intended to study in the United Kingdom and to return to the Philippines with the benefit of her United Kingdom qualifications. There was a witness statement from the claimant.[12]The AIT allowed the appeal. In the absence of any evidence whatsoever of the claimant’s alleged previous deception, this allegation was not substantiated. The evidence of the sisters was accepted.[13]The closing three paragraphs of the AIT’s decision are as follows:
“12. As to the Appellant’s college, the evidence showed that it was on the DIUS Register at the date of decision, which is the relevant date for the appeal. But the Entry Clearance Officer’s concerns about the college have been shown to be justified post decision, as the college has been the subject of a Home Office and police raid, and is no longer on the DIUS Register. The Tribunal is aware of that situation from other appeals, and so disclosed that knowledge to the Appellant’s solicitors at the commencement of the hearing, so as to forestall future problems. But the Appellant can have had no means of knowing that the college was not bona fide at the time of her enrolment and acceptance on the course. The Tribunal so finds. The qualifications she had hoped to gain are of general application and could not be said to be of no real relevance. 13. The closure of Cambridge College of Learning means that the Appellant will need to enrol on some other course before she can be granted entry clearance. Although it is not a matter for the Tribunal, it would be appropriate for great care to be exercised in that selection. 14. In conclusion, the Tribunal finds that this was an entry clearance application of substance and merit. Taking all of the evidence before the Tribunal into account, the Tribunal is satisfied that the Appellant has shown that she complied with all of the requirements of Paragraph 57 as at the date of decision. The Tribunal allows the appeal.”
[14]Paragraph 12 of the AIT’s decision is not easy to understand. In my judgment (and I reject the claimant’s contrary contention) the AIT did not find as a fact that Cambridge College of Learning was a bonafide private education institution at the date of the decision under appeal, so as to satisfy paragraph 57(i)(b). On the contrary, it recorded (apparently taking judicial notice of this, on the basis of its experience in other cases) that the ECO’s concerns about the college were shown to be justified. In those circumstances, it is not easy to see why the appeal was allowed. It was not enough that the college was on the Register and was believed by the claimant to be bona fide because if it was not in fact bona fide, paragraph 57(i)(b) was not satisfied.[15]It is possible that the AIT’s reasoning might have been that it was for the ECO to produce the evidence that the college was not bona fide at the date of his decision, and that it was enough, in the absence of any evidence whatsoever from the ECO, for the claimant to show that the college was on the register and that she had no reason to doubt its bona fides. If that was indeed the reasoning, I would comment first that it could have been more clearly expressed and secondly that, however clearly expressed, such reasoning would not be easy to reconcile with the AIT’s knowledge of the true position concerning the college and the correctness of the ECO’s concerns.[16]Whether or not the AIT’s reasoning was fully justified and explained, the AIT expressly allowed the appeal. The AIT had power to make a direction to give effect to its decision (see s 87(1) of the Nationality, Immigration and Asylum Act 2002), but did not do so. In the light of its knowledge that Cambridge College of Learning had closed down, so that the claimant had no place available to her for her proposed studies, this is not surprising.[17]Once the appeal was allowed, the ECO had the opportunity to seek reconsideration of the decision under s 103A. This opportunity was not taken, and the decision stands, leaving the claimant with an unchallenged judicial determination in her favour which this court must now respect.[18]This rather unsatisfactory background is what led to the decision of the ECO which is now under challenge.

Reconsideration

[19]As envisaged in paragraph 13 of the AIT’s decision, the claimant promptly obtained a place at a different educational institution, to follow a different course, leading to a different qualification. By 12 May 2009 (the actual date of formal promulgation of the AIT’s decision) she had been accepted by London City College, Waterloo Road, London SE1 onto its full-time, one year programme, leading to the award of what is called a ‘Diploma International Business’. Even though that course was due to start on 8 September 2009 the claimant did nothing to inform the ECO of this important fact until 27 July 2009, when a solicitor’s letter was sent by facsimile and post to the British Embassy in Manila requesting that she ‘be issued with her student entry clearance as a matter of urgency’. In the absence of a response, this was followed on 18 August 2009 with a letter before action which again stressed the urgency of the matter.[20]On 19 August 2009 the British Embassy in Manila responded to the effect that the letter of 27 July 2009 had reached the correct destination on 12 August and stating that since ‘the school’ (in context, meaning Cambridge College of Learning) had closed, the claimant had to make a fresh application with her new documents.[21]One effect of the claimant being required to make a fresh application, apart from delay and the payment of a further fee, would have been that her application would have been assessed under new rules, because paragraph 57 of HC395 was replaced by a new regime (see paragraphs 245ZT-245ZZD) with effect from 31 March 2009. The rules have been further updated from 1 October 2009. She was reluctant to make a fresh application.

The decision under challenge

[22]After a further letter before action of 21 August 2009 disputing the requirement that the claimant make a fresh application, these proceedings were commenced on 27 August 2009.[23]On 28 August 2009 the Entry Clearance Officer reconsidered the original application. It is his decision on that reconsideration which forms the decision under challenge in this application.[24]The basis on which such a reconsideration generally takes place is contained in a handbook for immigration staff which is a publicly available document. The relevant part is entitled ‘Appeals (APL) – Appeal procedures for posts’. The relevant paragraph, which applies where, as in the present case, there has been a successful appeal before the AIT but the AIT has not given directions that the appellant be admitted to the UK, reads as follows:
“APL2.5 Appeal allowed – no Directions given Post [this means the ECO] receives an allowed determination and Tribunal has not given directions. SAT [Special Appeals Team] has not applied to court for case to be reviewed. Entry clearance appeals are considered on the basis of the facts at the time of the original application, not at the date of the appeal hearing. An allowed appeal means that the IJ [Immigration Judge] has ruled that the ECO was wrong to refuse entry clearance not that the applicant is entitled to entry clearance. If the applicant still wants to travel, the ECO should normally issue the entry clearance as quickly as possible unless: • there has been a significant and material change in circumstances since the refusal decision of which the Tribunal would be unaware; or • there has been a material deception which has come to light of which the Immigration Judge would not have been aware; • the judge has failed to adequately consider the evidence or facts of the case in his determination; or • the results of checks that [were] instigated prior to refusing applicant came back after the appeal was heard. If the above circumstances apply, Post should first consider challenging the determination (see APL 2.6 below). If unsuccessful the ECO should then consider re-refusing the applicant (see APL2.7 below)” • there has been a significant and material change in circumstances since the refusal decision of which the Tribunal would be unaware; or • there has been a material deception which has come to light of which the Immigration Judge would not have been aware; • the judge has failed to adequately consider the evidence or facts of the case in his determination; or • the results of checks that [were] instigated prior to refusing applicant came back after the appeal was heard. If the above circumstances apply, Post should first consider challenging the determination (see APL 2.6 below). If unsuccessful the ECO should then consider re-refusing the applicant (see APL2.7 below)”
[25]The decision of the ECO on reconsideration was to the effect that he was not satisfied that the claimant met paragraph 57(i) of the Immigration Rules. The claimant’s application was therefore re-refused. As the ECO put it:
“You initially applied for Entry Clearance to pursue a course of study at Cambridge College of Learning on 27th August 2008 which was refused in a decision dated 10th October 2008, a subsequent appeal to the Asylum and Immigration (sic) was successful. In order to proceed with this application I am required to assess there is no significant change in circumstances from the original application. The educational institution at wish (sic) your propose to study is no longer in existence and therefore not included on the Department for Innovation, Universities & Skills Register of Education and Training Providers. Your application was made prior to the introduction of the Point Base System Tier 4, hence your application has been assessed under Paragraph 57 of the Immigration Rules. From the available information, I am therefore not satisfied you have been accepted to study in an organisation which is included on the Register of Education and Training Providers. I therefore refuse your application.”
I therefore refuse your application.”[26]The claimant was now in something of a cleft stick. Her appeal to the AIT had been allowed, at a time when everyone knew that Cambridge College of Learning would not be available for her to attend. The AIT had envisaged that she would have to find another institution in order to obtain entry clearance, which she had duly done. On reconsidering her application, however, the ECO had reassessed it only by reference to her original ambition to attend Cambridge College of Learning, and had left out of account the new fact that she had a place at London City College. So, apart from disposal of the question of her alleged use of deception in an earlier application, she had no discernible benefit from her success before the AIT.

The Claimant’s challenge to the decision

[27]On behalf of the claimant, counsel expresses the claimant’s challenge to this decision under four main headings.[28]First, it is submitted that at the time of the re-refusal, the claimant met the terms of paragraph 57 and met the requirement to be enrolled at a relevant institution. The relevant facts not being in dispute, the re-refusal was wrong in law. The claimant’s application was for admission as a student, and that application was not to be associated only with Cambridge College of Learning. Reliance was placed on the decision of the Court of Appeal in Obed and others v Secretary of State for the Home Department [2008] EWCA Civ 747, to which I return below.[29]Secondly, it is submitted that the approach taken is contrary to the published practice enshrined in APL2.5, which I have quoted above. The ECO relied on the existence of a ‘significant change of circumstances’. Even if the change from Cambridge College of Learning to a new course provider could be regarded as a ‘significant and material change’ for the purposes of the APL, the AIT was aware of the critical fact, which was that the claimant would not be attending Cambridge College of Learning. So the change did not provide a basis for re-refusal under the terms of APL2.5.[30]Thirdly, it is submitted that the re-refusal was based on an error of fact, namely that the claimant had not been accepted to study at an organisation the name of which appears on the Register, or without regard to a material consideration, namely that the claimant had been accepted onto an alternative course from an organisation which was on the Register.[31]Fourthly, it is contended that in the circumstances of the case, the re-refusal is irrational. It is said that the claimant has met the requirements of the rules at all material times and it is therefore an abuse of power for the ECO to refuse to grant entry clearance.

The Defendant’s response

[32]On behalf of the ECO it is submitted, by reference to s 85(5)(b) of the Nationality, Immigration and Asylum Act 2002, that the AIT was required to consider the circumstances appertaining at the time of the decision to refuse entry, at which date the claimant was not enrolled at London City College. It is submittted that the reasoning in paragraphs 12-14 of the AIT’s decision is obscure, but that it is clear that the AIT did not find that the claimant was entitled to entry clearance. Indeed, if that had been the AIT’s view, it had power to make a direction to that effect under s 87(1) but did not do so.[33]It is submitted that the claimant’s enrolment with a different course provider to undertake a different course is something which the ECO was entitled to regard as being a material change of circumstances. The decision as to whether the change is sufficiently significant to entitle the ECO to refuse entry was a matter for the ECO, subject to the usual public law requirements as to rationality. The ECO’s view that a change in both course and institution is a ‘material change in circumstances’ cannot be considered irrational. The AIT was not aware of the change, because the claimant had not registered on her new course at the time of the AIT’s decision. The AIT was only aware that the course on which the claimant had a place no longer existed.[34]The ECO’s submission is that the underlying problem in the claimant’s case is that she applied to enter the UK to study at an establishment that was not a bona fide educational institution. Had she chosen a genuine college, and the course and institution still existed, then no doubt (it is submitted) the AIT would have directed that entry clearance be granted. It is contended that it is not irrational of the ECO, when the claimant has made an application for leave to enter based on a bogus college, to require her to make a fresh application if she wants to enter to study a different course at a legitimate institution.

Discussion

[35]In my judgment resolution of these competing contentions requires and depends upon identification of the relevant characteristics of the claimant’s application under paragraph 57. She sought leave to enter the United Kingdom as a student. In order to obtain such leave she had to satisfy the ECO of various necessary conditions, of which one condition was that she proposed to study at a suitable institution. However, the identity of the particular institution is not itself a defining characteristic of the application, nor of the leave if granted.[36]That this is correct is demonstrated by the decision of the Court of Appeal in Obed (Sedley, Longmore and Moses LJJ). In that case, a question arose as to the legal consequences if a foreign student who has obtained leave to enter or remain in order to follow a named course embarks on a different course, or fails the course examinations. The court held that the grant of clearance to enter the United Kingdom as a student does not confine the entrant to a single course of study. At paragraph [14] of the judgment of the court Sedley LJ said this:
“Where rule 57(i) requires evidence that the entrant has been accepted at a recognised institution "for a course of study", rule 57(ii) does not simply go on to require evidence that he is able and intends to follow that course, as one would expect if there was a single-course policy. Rather the second sub-rule appears to accept that, so long as the course meets one of the prescribed standards, the choice is the student's. This in turn defines the "capacity" in which the student, under sub-rule (ix), is given entry clearance: it is as a student, not as a student of a particular subject or institute.”
[37]The significance of that to the claimant’s case is that when she originally applied for leave to enter the United Kingdom, she was seeking leave to enter as a student, not as a student or prospective student of Cambridge College of Learning. Her appeal against that refusal was successful and so it was inevitable that the application would have to be reconsidered. It was already known on all sides at the date of the appeal that the claimant could not for the future satisfy paragraph 57(i)(b) (bona fide private education institution) by reference to Cambridge College of Learning. If the inevitable reconsideration of the application was going to have any meaning at all, it had to take account of such further educational arrangements as the claimant might make and put before the ECO as potentially satisfying the criteria of paragraph 57.[38]Accordingly, when on 28 August 2009 the application was reconsidered by the ECO, there was before him an application by the claimant for leave to enter the United Kingdom as a student; it was not an application for leave to enter to study at (and only at) Cambridge College of Learning. The question for the ECO was then whether the relevant criteria in paragraph 57 were fulfilled.[39]In my judgment the ECO was in error in treating the claimant’s application as indissolubly linked to the one institution which everyone knew she could not attend. At the date of the reconsideration, the claimant was able to show that she had been registered as a potential student of London City College on a particular course. In order to give proper consideration to her application for admission as a student, it was therefore necessary for the ECO to consider among the other relevant factors whether London City College was on the relevant Register and was a bona fide private educational institution (paragraph 57(i)) and whether the proposed course satisfied paragraph 57(ii). London City College was however left completely out of the equation.[40]Instead the application was re-considered by reference to Cambridge College of Learning which was the one institution at which the claimant was certainly not going to study, a fact of which the AIT was perfectly well aware at the date of the appeal decision. The significant and material change of circumstance on which the ECO relied was not (as submitted by counsel) a change of course and course provider; the ECO expressly relied only on the removal of Cambridge College of Learning from the DIUS Register. For the purposes of APL2.5 it cannot be said that this removal from the Register was ‘a significant and material change in circumstances since the refusal decision of which the Tribunal would be unaware’. On the contrary, the Tribunal was well aware of it, and itself informed the parties.

Conclusion

[41]Accordingly, in my judgment the re-refusal by the ECO as recorded in the decision of 28 August 2009 was in error and I direct that it be quashed.[42]I reject the claimant’s contention that I myself should now direct the ECO to grant leave to enter. The decision is one for the ECO by reference to the criteria in paragraph 57, and not for the court. The correct course is for the ECO to re-consider the claimant’s application for leave to enter as a student, regarding London City College as the institution she puts forward for consideration as satisfying paragraph 57(i)(b).