Hussain, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2016] EWHC 2797 (Admin)

[2016] EWHC 2797 (Admin)Case No CO/4604/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/11/2016
Before
MR TIMOTHY DUTTON CBE QC
Between
THE QUEEN (ON THE APPLICATION OF) AZIZUL HUSSAINClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mark Blundell (instructed by Makka Solicitors) for ClaimantSamantha Broadfoot (instructed by Government Legal Department) for DefendantHearing Hearing dates: 26th January 2016
Judgment ApprovedMR TIMOTHY DUTTON CBE QC:
[1]This application for judicial review by the Claimant Azizul Hussain raises a point of interpretation under Part I of the Immigration Act 1971 (“the Act”) and Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 (“the Order”).

The Facts

[2]The facts which are relevant for determination of the matters before the Court can be shortly stated and, subject to one point about receipt of a letter from the Defendant addressed to the Claimant which is no longer relevant, are not in dispute.[3]The Claimant is a Bangladeshi national who was born on the 2nd of November 1982. He entered the United Kingdom on the 5th of April 2011 being given entry clearance as the spouse of Reena Roy Ali, a British citizen. The Claimant’s visa was valid from 21st March 2011 to 21st June 2013 on the basis that the Claimant was the spouse of a British citizen.[4]The Claimant was subsequently granted leave to remain from 12th August 2013 to 12th August 2015 as the spouse of Reena Roy Ali.[5]In the summer of 2013 the Claimant’s relationship with his wife broke down and divorce proceedings ensued.[6]In due course the marriage between the Claimant and his wife was annulled and by letter dated 26th July 2014 to the Home Office she confirmed that the marriage had been annulled, that there were no children from the relationship. On 22nd August 2014 she further stated that she did not intend to live with the Claimant as his spouse in the future. The Claimant had, he says, formed a relationship with the sister of his former wife.[7]On 22nd July 2014 the Claimant returned to Bangladesh in order, he says, to visit his mother.[8]The Defendant considered the facts as I have briefly summarised them above together with all the personal circumstances of the Claimant and by letter dated 28th August 2014 sent to the Claimant at the address in Bangladesh which he had provided to the Home Office, gave notice of curtailment of the Claimant’s leave to remain, with the effect that the leave to remain expired on 25th November 2014. That curtailment was made under Paragraph 323(ii) of the Immigration Rules. The decision letter contains the following passages which were drawn to my attention by the parties during the course of their submissions. It was obviously known to the Defendant that the Claimant had left the Common Travel Area because the decision letter stated … “Having left the Common Travel Area (the UK, the Channel Islands, the Isle of Man and the Republic of Ireland), your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the United Kingdom”.[9]The letter goes on to state that there is no right of appeal of this decision and under the section headed “No Right of Appeal” the Defendant stated:
“You are not required to leave the United Kingdom as a result of this decision. You still have leave to enter or remain where your current conditions continue to apply under 25th November 2014. Please ensure that you understand the conditions of your stay … Although you are not required to leave the United Kingdom at this time your leave to enter or remain in the United Kingdom is due to expire on 25th November 2014. You need to make arrangements to plan your departure before your leave expires. If you intend to remain in the United Kingdom after this time you should make a further application for leave before your current leave expires.”
[10]Mr Blundell for the Claimant placed some reliance on the passages which I have quoted from the decision letter in the course of his oral submissions, but ultimately nothing turns upon the construction of the 28th August 2014 letter, and I do not consider that the letter could have led the Claimant to believe that he would not require a visa if he were to re-enter the United Kingdom. In any event, the Claimant’s contention is that he did not see that letter before he decided that he would return to the United Kingdom which he did on 30th September 2014. He was detained on arrival on the basis set out in a notification given to him on the same day, that “Under the Immigration Rules you are required to have a visa to enter the United Kingdom and you have no visa. This is because you have leave to remain in the United Kingdom as a spouse of a British national but in July 2014 your wife notified the Home Office that your marriage was no longer subsistent. Subsequently on 18th August 2014 your leave to remain was curtailed with no right of appeal”.[11]On 2nd October 2014 the Claimant applied for judicial review of the decision made on 30th September 2014 refusing him leave to enter the United Kingdom as well as the decision to set removal directions for his removal to Bangladesh to take place on 3rd October 2014. Interim injunctive relief was granted on the same day by Mr Justice King restraining removal pending determination of the application, and on 5th November 2014 HHJ Bidder QC (sitting as a deputy High Court Judge) gave permission for the Claimant to advance his claim for judicial review on two grounds, being: i) That it was arguable that if the Claimant had left the UK before curtailment of his leave to remain was served, his leave to remain did not lapse and he had leave to enter on 30th September 2014 and was then unlawfully detained and ii) Alternatively that it is arguable that he had an in-country right of appeal against the decision to curtail his leave.[12]The Claimant has formally abandoned the second ground (see Paragraph 30 of his Skeleton Argument).

The Issues

[13]The first issue which I must decide is whether the Claimant’s leave to remain lapsed by operation of law upon his being outside the Common Travel Area by virtue of Article 13(3) of the Order.[14]A second issue may arise which is whether if the Claimant did have leave to remain at the time of his attempted re-entry on the 30th September 2014 the decision to detain him was unlawful. The Claimant was detained from 30th September 2014 until 08 October 2014 when he was released on temporary admission pending the outcome of these proceedings.

The Legislative Framework

[15]The starting point is Part I of the Immigration Act 1971. Section 3(4) of the Act provides:
“A person’s leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the Common Travel Area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.”
[16]Sections 3A and 3B enable the Secretary of State by Order to make provision with respect to the giving, refusing or varying of leave to enter the United Kingdom. The Order was made under the power conferred under these sections of the Act. Part IV of the Order which is headed “Leave Which Does Not Lapse on Travel Outside Common Travel Area” contains within it the critical article for the purposes of this case - Article 13. Where relevant Article 13 provides as follows:(1) In this Article “leave” means – (a) Leave to enter the United Kingdom (including leave to enter conferred by means of an entry clearance under Article 2) (b) Leave to remain in the United Kingdom.(2) Subject to Paragraph (3) wherever a person has leave which is enforced and which was: (a) Conferred by means of an entry clearance (other than a visit visa) under Article 2; or (b) Given by an Immigration Officer or the Secretary of State for a period exceeding six months, such leave shall not lapse on his going to a country or territory outside the Common Travel Area.(3) Paragraph (2) shall not apply; (a) Where a limited leave has been varied by the Secretary of State; and (b) Following the variation the period of leave remaining is six months or less.(4) Where a person is outside the United Kingdom and has leave which is enforced by virtue of this Article, that leave may be cancelled; (a) In the case of leave to enter, by an Immigration Officer; or (b) In the case of leave to remain, by the Secretary of State.” Paragraphs (6), (8) and (9) have been referred to and relied upon by both parties and I refer to them further below.[17]I should also refer to Paragraph 20A of the Immigration Rules which since 30th July 2000 have provided as follows:
“20A. Leave to enter or remain in the United Kingdom will usually lapse on the holder going to a country or territory outside the Common Travel Area. However, under Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 such leave will not lapse where it was given for a period exceeding six months or where it was conferred by means of an entry clearance (other than a visit visa)”
[18]The Immigration Rules provide for the curtailment of an individual’s leave to enter or remain where he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted: see Paragraph 323(ii).[19]Part III of the Order contains various provisions relating to the form and manner of giving, varying and refusing leave to enter or remain. Under Paragraph 8ZA(1) “A notice in writing – i) Varying a person’s leave to enter or remain in the United Kingdom, may be given to the person affected as required by Section 4(1) of the Act as follows ii) The notice may be – a) Sent by postal service to a postal address provided for correspondence by the person or the person’s representative; iii) Where no postal or email address for correspondence has been provided the notice may be sent a) By postal service to i) The last known or usual place of abode, place of study or place of business of the person; or ii) The last known or usual place of business of the person’s representative …

The Parties’ Submissions

[20]On behalf of the Claimant Mr Blundell accepts that the Defendant had a lawful basis upon which to curtail the Claimant’s leave to remain under Paragraph 323(ii) of the Immigration Rules. He accepts that the Defendant followed her published guidance in so far as she curtailed the Claimant’s leave so as to expire within 60 days of the date on which service of the curtailment notice was deemed to be effective under Article 8ZB(1)(a)(ii) of the Order.[21]The Claimant also now accepts that the Defendant was entitled by Article 8ZA(2) or (3) of the Order to send the notice of curtailment to the address in Bangladesh which the Claimant had provided to the Defendant. There appeared on the papers to have been a dispute as to whether or not the address which was used on the envelope and on the heading of the decision letter was in fact appropriate, but this contention was wisely abandoned by Mr Blundell and I need say no more about it.. It follows that I proceed on the basis that by the decision dated 28th August 2014 the Secretary of State lawfully gave notice curtailing the Claimant’s leave to remain such that his leave to remain expired on the 25th of November 2014. Further, I proceed on the basis that the Claimant was properly served in accordance with the Order with that decision, and therefore prior to his seeking to re-enter the United Kingdom on 30th September 2014 his leave to remain had been curtailed and that there was less than six months remaining.[22]Mr Blundell submits however, that Article 13 did not have the effect of causing the Claimant’s leave to remain to lapse because Article 13(2) and (3), properly construed apply in circumstances where a person has not, or not yet, left the United Kingdom whereas paragraphs (6) – (8) of Article 13 make specific provision for the variation or cancellation of an individual’s leave whilst they are outside the United Kingdom. He therefore argues that it is Paragraphs (6) – (8) of Article 13 which apply and are to be used where an individual has already left the United Kingdom, as, he contends, the earlier lapsing provisions are of no application.[23]In support of his argument Mr Blundell draws my attention to the Defendant’s 31st July 2014 Policy Guidance on curtailment which he argues does not contemplate that Article 13(3) would have the effect for which the Defendant contends. Page 84 of the Guidance he argues contains no suggestion that curtailment will immediately engage Article 13(3) if the individual is already outside the UK. The Guidance also instructs case workers to consider curtailing the leave of an overseas migrant to 60 days “unless there are exceptional reasons to curtail with immediate effect”. He contends that on the Defendant’s construction of Article 13(3) that instruction would be otiose since the effect of any curtailment would be the automatic lapsing of leave.[24]Mr Blundell also relies on the following passage of the Guidance, contained within Page 146:
“If you are curtailing leave so that some leave remains, you must also include the following line: “If you leave the UK your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the UK”
. This is to warn the migrant that, in accordance with the above Order, their curtailed leave will lapse if they leave the UK, so they will not be able to rely on that leave to re-enter the UK if they travel after their leave is curtailed”[25]Mr Blundell contends that the final sentence of that section correctly captures the purport and effect of Article 13(3): i.e. an individual will no longer be able to rely on their curtailed leave if they travel after their leave is curtailed. He argues that neither the Guidance nor the statutory scheme suggest that an individual will be unable to rely on leave which was curtailed after their departure from the United Kingdom.[26]There are no reported decisions on the point. But in support of his submission Mr Blundell relies upon Paragraph 3.104 of McDonald’s Immigration Law and Practice in which the editors say the following in respect of the 2000[27]The Claimant’s submission therefore is that Article 13(3) was of no application to the Claimant’s case. The contention is that his leave had not been varied by the Defendant before the Claimant left the Common Travel Area and could not lapse whilst he was outside the United Kingdom even if the decision to curtail had been validly served. He therefore held extant leave when he returned to the UK on 30th September 2014 and the Defendant was not entitled to refuse him leave to enter and to detain him for the reasons which she gave at the time.[28]By contrast Miss Broadfoot for the Defendant submits that the Claimant’s leave to remain was curtailed lawfully by the decision of 28th August 2014 as to which the Claimant received notification (as he now accepts) under Article 8ZA of the Order.[29]As to the construction of the relevant parts of the Order Miss Broadfoot submits that when Article 13(3) applies, then Article 13(2) does not. The question therefore was whether the Claimant’s limited leave had been varied as to which the answer was “yes”. The next question was whether following the variation the period of leave which remained was six months or less as to which again the answer was “yes”. In these circumstances the Defendant then argues that Article 13(2) does not assist the Claimant at all because it does not apply.[30]The Defendant further argues that the Claimant’s contention that the question as to whether leave lapses is to be answered solely by reference to how much leave the individual had at the point of departure is wrong for the following reasons: i) First, the Claimant’s submission requires one to read limiting words into Article 13(3) to the following effect “Paragraph (2) shall not apply (a) where limited leave has been varied by the Secretary of State whilst the person was in the United Kingdom; and (b) following the variation the period of leave remaining is six months or less”. The Defendant contends that Paragraph 3 is silent on the location of the individual whose leave is varied. She therefore argues that if it had been intended that Article 13(3) were to have the meaning advanced by the Claimant additional words would have to be read into sub-paragraph 3 which is simply unjustified. ii) Secondly, it is submitted that the Claimant’s construction is inconsistent with Articles 13(4), (6) and (8). It is said that Article 13 contemplates that leave may be varied or cancelled whilst the individual is outside the United Kingdom – see Paragraphs (6) – (9). However, where Article 13(2) applies (as the Claimant contends), the leave which was in force at the time of departure (in this case until August 2015) is stated, by operation of Article 13(4) to remain in force indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited). The Claimant’s construction would have prevented the Secretary of State from curtailing a person’s leave whilst outside the United Kingdom and would amount to a considerable fetter on her statutory power to do so. This would be in circumstances where the Article relied upon expressly contemplates such a course of action. It is contended that the Claimant’s argument that Paragraphs (6) – (9) are the paragraphs which apply where a person is outside the United Kingdom for this reason alone cannot be right. iii) Thirdly Miss Broadfoot argues that there is no justification for the limitation contended for by the Claimant. The Secretary of State must be able she says to curtail a person’s leave upon discovery, for example, that the leave in question was obtained by fraud. Her submission is that such curtailment must be possible no matter the location of the individual concerned for otherwise the effect of the Claimant’s construction would be that the Defendant would have to wait until the fraudster had returned to the United Kingdom on the leave wrongly granted, be permitted to enter and then the leave would have to be curtailed. It is submitted that Parliament cannot have intended such an unusual and cumbersome process. In any event these surprising results of the Claimant’s arguments it is said support the Defendant’s construction of Article 13. The Correct Construction of Article 13 of the Immigration (Leave to Enter and Remain) Order 2000[31]I approach the question of construction in the usual way: the language of the Article must be given its natural and ordinary meaning having regard to the statutory purpose and context..[32]The starting point is that a person’s leave to enter or remain in the United Kingdom lapses on his going to a country or territory outside the Common Travel Area by virtue of Section 3(4) of the Immigration Act 1971. In practical terms this meant that a person with leave could not leave the Common Travel Area without that leave lapsing and would then have to seek leave to enter on return.[33]As the editors of McDonald’s Immigration Law and Practice have stated the 1971 Act was amended by the insertion of Sections 3A and 3B which enabled the Secretary of State to make a statutory instrument which provided for a person’s leave to enter or remain not to lapse upon leaving the Common Travel Area and this power was exercised in the form of the Order. I do not however consider that the passage quoted from McDonald provides assistance on the point which has arisen in this case. The editors are correct that leave will lapse on a person leaving the UK as they state in the underlined passage. Equally, in my judgment, leave will lapse if the person has already left the UK, and his leave is curtailed such that he has less than 6 months remaining when he seeks to re-enter.[34]The legislation taken as a whole and the commentary on it by McDonald tends to indicate that the Order was brought in to prevent the unfairness of, for example, students and others who have leave to remain having to re-apply on their leaving the Common Travel Area where they have sufficient leave to remain.[35]Article 13(2) provides an exception to the principle set out in the primary legislation as I have described it to the effect that “such leave shall not lapse on his going to a country or territory outside the Common Travel Area”. Mr Blundell relies upon the phrase “on his going” in support of his argument that Article 13(2) and (3) read together are applying to a situation where leave has not been curtailed at the point of departure. However, I do not accept that these words provide much assistance in the determination of the correct construction of Article 13(2) and (3).[36]Article 13(3) is, as the Secretary of State contends, a paragraph which prevents Article 13(2) from applying at all. Thus, if a person has had limited leave varied by the Secretary of State such that, following the variation, the period of leave remaining is six months or less Article 13(2) “shall not apply”. It matters not whether the person was in the UK when leave was curtailed or outside it when leave was curtailed: Article 13(2) simply does not apply if leave has been curtailed, and (this case) there is less than six months remaining.[37]It follows that the natural and ordinary meaning of Articles 13(2) and (3) and the correct construction is that which the Secretary of State submits.[38]I do not consider that Paragraphs (6) – (9) of Article 13 have the effect which the Claimant contends for. Paragraph 6 makes provision for the Secretary of State to vary leave where the person concerned is “outside the United Kingdom”. Paragraph 7 makes provision for leave to be cancelled where a person is outside the United Kingdom, and Paragraph 8 makes provision for the Secretary of State to seek such information and the production of such documents as may be required in order to assist in the making of a determination. Paragraph 9 deals with the question of the consequences of failing to supply such information – being a ground in itself for cancellation of leave.[39]These paragraphs properly read in the context of Article 13 as a whole do not have the effect that the Claimant submits. Paragraphs (6) – (9) are indeed addressing the question of people who are outside the United Kingdom. And it is correct that Paragraphs (6) – (9) are dealing with the Defendant’s right to vary or cancel leave where a person is outside the United Kingdom. But I do not regard that as having any impact as to the natural and ordinary meaning of Paragraphs (2) and (3) which, read literally, and as I consider naturally, have the effect as I described in paragraph 36.[40]Further, I accept the Defendant’s submission that the construction advanced by the Claimant in respect of Paragraphs (6) – (9) of Article 13 would lead to some surprising results. First, it seems to me that additional language would have to be read into Article 13(3) to set out the timing for which the Claimant contends – i.e. a phrase such as “whilst the person was in the United Kingdom” coming after the “Secretary of State”. There is, in my judgment no warrant to read Article 13(3) in this way still less to consider that such language should somehow be implied or inserted into it.[41]Secondly, the Secretary of State is in my judgment right that the effect of the construction contended for by the Claimant could lead to the Secretary of State being prevented from curtailing a person’s leave whilst they are outside the United Kingdom which would run expressly contrary to one of the purposes of Article 13(4).[42]Thirdly, there is no justification as a matter of legislative policy for the construction contended for by the Claimant under Article 13(3). It would indeed be the effect of the Claimant’s submission that if someone has by chance left the United Kingdom in circumstances where he/she had obtained leave by fraud it would not be possible to curtail that leave unless and until the person re-entered the United Kingdom. I agree that this would be a very surprising result and it is not one which is justified on a proper reading of Article 13(3) in its legislative context.[43]Finally, I reject the Claimant’s submissions based on the Home Office Guidance for three reasons. First, the Guidance cannot be used to alter the meaning of a statutory provision and that it is what the Claimant seeks to do in his submission. Secondly, I do not consider that the Guidance actually does provide much if any support for the Claimant. It is true that within the passages I have quoted the Guidance is forward looking and may be addressing the situation where the person with leave is still in the UK. But the Guidance does not in my view address the factual situation which has arisen in this case of curtailment occurring after a person has left the UK and travelled outside the CTA who seeks to return (which judged by the fact that there appear to be no reported decisions may be comparatively rare). And the Guidance is not inconsistent with leave lapsing if curtailed whilst a person is outside the CTA. Thirdly, the Guidance is not addressing the question of the construction as a matter of law of Article 13(3). It is giving practical advice for people dealing with how to deal with cases and does not purport to attempt to give a legal interpretation of article 13(3).

CONCLUSION

[44]For all of these reasons I conclude that in circumstances where the Claimant’s leave to remain had, as he accepts, been curtailed whilst he was outside the Common Travel Area his leave to remain had lapsed. In these circumstances he was not entitled to re-enter. It also follows from this that his claim for unlawful detention also fails and I will therefore dismiss this application for judicial review.

Order

“Until the amendments brought about by the Immigration and Asylum Act 1999, a person’s leave to enter or remain in the UK lapsed on his or her leaving the Common Travel Area. This meant that many persons with limited leave (as students, for example) who left the UK for a short holiday were refused leave to enter on their return, because they did not have an entry clearance or visa. The provisions of the Immigration (Leave to Enter and Remain) Order 2000 has put an end to this anomaly. Leave to enter or remain does not lapse when the holder goes abroad, if it was conferred by an entry clearance (other than a visit visa) or by an Immigration Officer or the Secretary of State for more than six months. There appear to be two exceptions. First, Section 3C of the Immigration Act 1971 … Secondly, that where leave has already been varied by the Secretary of State and, following the variation, there is less than six months left, it will lapse on leaving the UK.” Mr Blundell relies upon the emphasised passage.