Gulzar(S), R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2138 (Admin)

Case No CO/11583/2008[2010] EWHC 2138 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 8th July 2010
Strand
London WC2A 2LL
B e f o r e:
M SUPPERSTONE QC
(Sitting as a Deputy Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF GULZAR(S)Claimantv
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)
Mr D Lemer (instructed by Rahman & Co) appeared for ClaimantMiss S Lambert (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is a challenge to the decision of the Secretary of State for the Home Department, contained in notices dated 14th October 2008, that the claimants had no extant leave when they made their application to vary their leave to remain on 19th June 2008, their leave having expired on 5th April 2008.[2]This is also a challenge to the determination of the Asylum and Immigration Tribunal promulgated on 28th October 2008, to the effect that the claimants having applied to vary their leave to remain when they had no extant leave, they had no right of appeal.[3]The factual background is that the first claimant is a Pakistani national and the second and third claimants are the first claimant's sons. The claimants along with Mrs Shahida Gulzar, the first claimant's wife and mother of the other two claimants, entered the UK on 15th August 2002. Prior to entering the UK, on 26th July 2002 they had all obtained in Islamabad, Pakistan, exempt vignettes on an entry clearance stamp as a "Visa Exempt Official" or dependents of a visa exempt official endorsed on their passports. The exempt vignette was valid for a period of 5 years, until 26th July 2007.[4]On 5th October 2007 the claimants and Mrs Gulzar obtained a further exempt vignetteextending their exempt status until 7th October 2008. The first claimant's employment was terminated on 5th January 2008. The claimants and Mrs Gulzar travelled to Ireland in February 2008.[5]On 19th June 2008 applications were made to the Secretary of State on behalf of the first claimant and his wife and the second and third claimants for indefinite leave to remain (known as ILR) pursuant to paragraph 167 of the Immigration Rules, on the basis that the first claimant was a person with diplomatic leave with 5 years continuous residence in the UK.[6]By notices dated 14th October 2008 the Secretary of State refused the claimants' application for ILR in the UK, on the basis that variation of leave to remain was sought for a purpose not covered by the Immigration Rules and would not amount to a breach of their Article 8 rights. The notice further stated that there was no right of appeal against that decision as the claimants' leave to remain expired on 5th April 2008, and accordingly the claimants did not have leave to remain at the time when the application was made on 19th June 2008.[7]The claimants seek to challenge this decision of the Secretary of State to refuse to grant them ILR.[8]The claimants appealed to the Asylum and Immigration Tribunal. In a determination promulgated on 29th October 2008 Immigration Judge Astle noted that the claimants applied for leave to remain at a time when their existing leave had expired and applying LS Gambia [2005] UKIAT 00085 concluded that there was no right of appeal and in the circumstances the Tribunal could not accept the notices of appeal.[9]Mr Lemer, for the claimants, accepts that pursuant to section 8(3) of the Immigration Act 1971 the claimants were exempt from immigration control for as long as the first claimant remained part of the Pakistani diplomatic mission. It is further accepted that following the termination of the first claimant's employment on 5th January 2008 the provisions of section 8A of the 1971 Act would be applicable. They read as follows:
"8A Persons ceasing to be exempt (1) A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8(2) or (3) (2) If a person who is exempt- (a) ceases to be exempt, and (b) requires leave to enter or remain in the United Kingdom as a result, he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt."
Mr Lemer makes the following submissions.[1]The endorsements within the claimants' passports satisfy the formal requirements for entry clearance as set out in Regulation 3 of the Immigration (Leave to Enter and Remain) Order 2000, in that the endorsement refers to the purpose of the holder's visit and there is clear reference to the validity and expiry of the leave, amounting to conditions.[2]The clear wording of the statute, Statutory Instrument and Immigration Rules relating to the definition of "entry clearance" should take precedence over the respondent's guidance.[3]The claimants' exemption from immigration control, pursuant to section 8(3) of the 1971 Act could not have commenced until the first claimant took up his post. (Section 8A).[4]As such the claimants' initial grants of entry clearance, made before the first claimant arrived in the UK to take up his post predated any exemption from immigration control.[5]Pursuant to Immigration (Leave to Enter) Order 2000 the claimants' entry clearance took effect as leave to enter upon arrival in the UK and their subsequent grant of entry clearance on 5th October 2007 (valid until 7th October 2008) took effect as leave to enter following the claimants' return from Ireland in February 2008.[11]Mr Lemer submits that where an individual has been granted limited leave to enter or remain in the UK, that leave will continue to have effect where the relevant exemption from immigration control ceases to have effect. He relies on section 8(5) of the Act:
"Where a person having limited leave to enter or remain in the United Kingdom becomes entitled to an exemption under this section, that leave shall continue to apply after he ceases to be entitled to the exemption, unless it has by then expired..."
[6]In the alternative it is submitted on behalf of the claimants that if it is found that the grant of entry clearance was made by mistake, the grant should treated as a 'pledge of public faith' and the claimants should be granted leave to enter in accordance with the stamp.[7]Further there is a legitimate expectation submission. I have been referred to the judgment of Laws LJ in Nadarajah v Secretary of State for the Home Department[2005] 1 EWCA Civ 1363, where at paragraph 68 he sets out his well-known observations on the principle behind the proposition that where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. Mr Lemer submits:[1]The grant of entry clearance amounted to a clear and unambiguous representation that they had been granted entry clearance.[2]That clear and unambiguous representation takes precedence over the defendant's purported practice.[3]The claimants relied upon their stamps taking effect as a normal grant of entry clearance, and thus believed that their leave to enter would have expired on 7th October 2008.[4]The claimants have suffered detriment in that the submission of their ILR applications on 19th June 2008 was made at a time when the leave to remain had expired on 5th April 2008, thus denying them a right of appeal. It is further submitted that:[1]There are no proper reasons for the defendant to depart from their clear representation that the claimants had been granted entry clearance.[2]The defendant should be held to its promise to grant entry clearance which would result in the claimants' leave to enter expiring on 7th October 2008.[3]The defendant has compounded the injustice by continuing to refuse to issue the claimants with removal directions which would by virtue of section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 confer a right of appeal upon the claimants.[14]The linchpin of Mr Lemer's case, on his primary submission that on their return from Ireland to the UK in February 2008, they were given leave to enter until 7th October 2008 is Article 4(3)(b) of the Immigration (Leave to Enter and Remain) Order 2002. Article 4 is entitled "Extent to which Entry Clearance is to be Leave to Enter". Article 4(3) reads:
"In the case of [any form of entry clearance to which this paragraph applies], it shall have effect as leave to enter the United Kingdom on one occasion during its period of validity; and, on arrival in the United Kingdom, the holder should be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom: (a) in the case of an entry clearance which is endorsed with a statement that it has to have effect as indefinite leave to enter the United Kingdom, for an indefinite period; or (b) in the case of entry clearance which is endorsed with conditions, for a limited period, being the period beginning on the date on which the holder arrives in the United Kingdom and ending on the date of expiry of the entry clearance."
[15]Mr Lemer submits, by reference to the latest entry clearance and the claimant's passports that they contained a condition for the purposes of Article 4(3)(b), namely one of validity from 5th October 2007 until 7th October 2008.[16]I reject this submission. I accept the submission made by Miss Lambert on behalf of the Secretary of State that there is no entry clearance which gives effect as leave to enter for the purposes of Article 3 of the 2000 order. Article 3 reads:
"(1) Subject to paragraph (4), an entry clearance shall only have effect as leave to enter if it complies with the requirements of this article... (2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom. (3) The entry clearance must be endorsed with (a) the conditions to which it is subject; or (b) a statement that it is to have effect as indefinite leave to enter the United Kingdom."
[17]In my judgment, the dates on the entry clearance do not amount to a condition for these purposes. There is no evidence that the claimants were granted leave to enter on their return from Ireland. There is no stamp in any of their passports or any other document that amounts to or contains a condition for the purposes of section 3(1)(c) of the Act or Article 3 of the order or evidences leave to enter.[18]In my judgment the grace period that commenced on the termination of the first claimant's employment, on 5th January 2008, was uninterrupted and unchanged by the claimant's trip to Ireland and their leave to remain expired on 5th April 2008.[19]I can deal very shortly with the alternative submissions made by Mr Lemer. First, the pledge of public faith submission. Mr Lemer invoked paragraph 8.4 of the Immigration Directorate Instructions Chapter 14. It is headed "Persons given leave in error whilst exempt from control" and reads: "Persons given leave in error whilst exempt from control From time to time persons who are exempt from control are, on entry, given leave by mistake. Whether such a person is erroneously given indefinite leave or limited leave to enter, the granting of leave should normally be regarded as a pledge of public faith. When such cases come to light they should be dealt with as follows:• Indefinite leave to enter: if such a person makes enquiries about his status while he is still exempt he should be told that once he ceases to be exempt his passport will, on application, be stamped with a fresh grant of indefinite leave. On receipt of such an application the caseworker should, provided he is satisfied that the applicant has properly ceased to be exempt from control, make a fresh grant of indefinite leave (endorsed with an 'ILR' stamp not a 'no time limit' stamp) in order to put the person's status beyond doubt;• Limited leave to enter: the same principle as that employed for 'indefinite leave' applies, except that the person, having properly ceased to be exempt, should on application be granted fresh leave on the same conditions and expiry date, provided that this is not less than 90 days from the date when he lost exempt status.[20]There is no evidence of such a mistake. Therefore, in my judgment, no question of a pledge of public faith arises.[21]As for the legitimate expectation argument, this fails at the first hurdle. There was no representation made that the claimants had been granted entry clearance. In my judgment, there is no evidence of any such representation.[22]For completeness I should add, no question of the Secretary of State's guidance taking precedence over the statutory materials arises. There is no conflict between the statutory materials and the guidance material to the matters in issue in these proceedings.[23]In my judgment, none of the grounds of challenge have been made out. Accordingly, for the reasons that I have given, these claims for judicial review are dismissed.[24]THE DEPUTY JUDGE: I thank both counsel for their submissions. You are just taking instructions, are you, Miss Lambert? MISS LAMBERT: My Lord we would seek our costs.[26]THE DEPUTY JUDGE: The costs you are entitled to are in relation to the preparation of the acknowledgement of service. I think you put a figure on that. Is it about £600? I saw it somewhere in the papers. Was it at the end of your detailed grounds? MISS LAMBERT: The summary grounds my Lord. £600.[28]THE DEPUTY JUDGE: Was that the figure? £600. That is for the preparation of the acknowledgement of service. I do not take the view that you are entitled to any further costs over and above that in relation to this hearing because the preconditions for that do not, in my view, apply.[29]Mr Lemer, as far as the acknowledgement of service is concerned? MR LEMER: My Lord, I have nothing further to add.[31]THE DEPUTY JUDGE: I am very grateful. You will have those costs in that sum. That is the sum that covers the acknowledgement of service in relation to all claims.