“limited leave” and “indefinite leave” means respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration;”
“subject to article 13A”
“subject to articles 13A and 13B”
“31. In my judgment Article 13(5) was incidental and supplemental to the relaxation of the effect of section 3(4) of the Act achieved by Article 13(2)(b) under the express power so to order granted by section 3B(2)(c). I do not for my part consider that Article 13(5) amounted to an unlawful extension of the power to examine arrivals. It was, in the view of the then SecretaryofState, a necessary qualification to the relaxation of section 3(4). All Article 13(5) does is to place in the same position those with advanced leave to enter and those with limited but extant leave to remain who return to the United Kingdom following a period abroad. The President of the Upper Tribunal, BlakeJ, and UpperTribunal JudgeKing described the position at paragraph 26 of their determination as follows: "26. In our judgment, therefore, the SecretaryofState was not creating novel powers of cancelling the limited leave that was outside the purpose of section 3B, rather her predecessor was creating a novel class of non-lapsing leave to remain that would justify admission to the United Kingdom after the trip abroad but needed to temper this new provision by applying the same powers of cancellation to it as if it had been a form of entry clearance or leave to enter. The power to cancel such leave was needed as an ancillary provision to the new class of non-lapsing leave " 32. I agree, with respect. Article 13(2)(b) was introduced to alleviate the draconian effects of section 3(4) of the Act. At paragraph 4.6 of the eighth edition of MacDonald’s Immigration Law and Practice the editors drew attention to those unwanted effects of section 3(4). Students might take a short break in the middle of term and return to sit examinations. They would be refused leave to enter on their return. Appeals against that decision would have to be conducted out of country. However, if Mr Malik's argument is correct, the Act empowered the Secretary of State to remove the restriction on return to the United Kingdom, but it did not empower the Secretary of State to provide the safeguard to that relaxation by enabling an immigration officer to examine the student on his return so as to ensure that he intended to resume his period of study and that his course of study remained open to him, as would be the case with a student arriving with advanced leave to enter to take up a course of study for the first time. This is not a construction of section 3D(2) of the Act which I am able to accept. The terms of Article 13(5) were in my view incidental to Article 13(2) because they had the effect of defining the ambit of the relaxation intended from the effects of section 3(4) of the Act.”
“25. The law is settled as to the proper approach to the construction of the Rules. As observed by Lord Brown in Ahmed Mahad v ECO[2009] UKSC 16 at paragraph [10]: “There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffman said in Odelola v Secretary of State for the Home Department[2009] 1 WLR 1230 , 1233 (paragraph 4): ‘Further, like any other question of construction, this [whether a Rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the Rule, construed against the relevant background. That involves a consideration of the Immigration Rules as a whole and the function which they serve in the administration of immigration policy.’ That is entirely consistent with what Buxton LJ (collecting together a number of dicta from past cases concerning the status of the Rules) had said in Odelola in the Court of Appeal[2009] 1WLR 126 and indeed, with what Laws LJ said (before the House of Lords decision in Odelola) in the present case. Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument but, instead sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The respondent’s Counsel readily accepted that what she meant in her written case by the proposition ‘the question of interpretation is … what the Secretary of State intended his policy to be’ was that the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, unders.3(2) of the Immigration Act 1971 , the Secretary of State has to lay the Rules before Parliament, which then has the opportunity to disapprove them. True, as I observed in Odelola (paragraph 33): ‘The question is what the Secretary of State intended. The Rules are her Rules’. But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from the Immigration Directorates' Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that: ‘In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State …’ (emphasis added).”
“The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.”
“I respectfully agree with paragraph 70 of Rix LJ's judgment in Adedoyin. I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government's favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court's reasoning in R (Alvi) v Secretary of State for the Home Department[2012] UKSC 33 ;[2012] 1 WLR 2208 .”
“Are you sure you wish to maintain you took the test? A33 “No I didn’t take the test”; Q34: Who took the test for you? A34: I don’t know; Q36 Can you explain to me how someone else ended up taking the TOEIC English test for you? A36 I don’t know who sit the exam. Someone I know arranged it.”
“13. We have not been shown anything in the 2008 Rules which would enable us to entertain an application to pursue ground 1. The Appellant relied upon Rule 5 which is concerned with general case management powers. But rule 5 has to be read alongside Rule 22. Where the Upper Tribunal makes a decision “on the papers” to refuse permission to appeal or to grant permission on limited grounds, Rule 22(3) and (4) enable an Appellant to apply for the reconsideration of permission to appeal at a hearing before the Upper Tribunal. This provision only applies to appeals from the Tribunals listed in sub-paragraph (3), which do not include the Immigration and Asylum Chamber. The clear implication is that this Chamber in the Upper Tribunal does not have the power to reconsider a paper decision refusing or limiting permission to appeal made at that level.”
“14. It is important that there should be read into the [CPR] no limitation on the jurisdiction of the High Court to grant permission on a fresh application. There may be circumstances where notwithstanding the previous refusal of permission a second application may be appropriate or necessary. The previous decision may have been correct and not open to challenge at the time the decision was made, but circumstances may have materially altered, new evidence may have come to light or the law may have significantly changed (e.g. by a reversal of a decision of the Court of Appeal by the House of Lords). It would be calculated to cause inconvenience and injustice if the High Court were precluded from granting permission in such circumstances (consider Spencer Bower, Turner and Handley on Res Judicata 3rd edition paragraph 172). Rather than reading any such limitation into the Rules it is appropriate to reflect the need for caution in the exercise of the jurisdiction and the need for respect for the legitimate expectations of previously successful defendants in the principles governing the exercise of the discretionary jurisdiction. 15. … 16. Following the guidance afforded by Buckley LJ [in Revlon v Cripps[1980] FSR 185 ], the relevant principle must be that the court should give proper respect to the provisions ofCPR 52.15 which lays down the normal appropriate route to be followed where an application for permission has been refused and to the legitimate expectation of the defendant that in the absence of an appeal to the Court of Appeal the threat of litigation is at an end. The court should only exercise its discretion to grant permission where the claimant establishes that there has been a significant change of circumstances or that he has become aware of significant new facts which he could not reasonably have known or found out on the previous unsuccessful application or that a proposition of law is now maintainable which was not previously open to him. If the fresh application merely relies on evidence which was available and on propositions of law which were reasonably maintainable on the previous unsuccessful application, permission should be refused as an abuse of process.”
“16. Mr Scrivener did not criticise the approach of Lightman J in relation to paragraph 14, but did not accept his approach in relation to paragraph 16. This court is concerned as to whether Lightman J's approach is an appropriate one. I have already indicated that I approve of the broad discretion to which he referred in paragraph 14 of his judgment, but I have very real reservations as to the limitations upon that discretion which he inserts in paragraph 16. Certainly the matters to which he refers in paragraphs 16 are ones which, if satisfied, could cause a judge to grant permission for a further argument to be advanced in relation to an additional ground. However, in my view what is referred to by Lightman J is not exhaustive. The discretion of a judge hearing an application for judicial review is wider than that indicated in paragraph 16. Of course, where, as here, a judge has heard detailed argument, any judge who is conducting the hearing of the main application is going to be require significant justification before taking a different view from the judge who granted permission. However, if he comes to the conclusion that there is good reason to allow argument on an additional ground, bearing in mind the interests of the defendant, the judge can give permission for that to happen. It is not unusual for a situation to arise, even in the course of a hearing, where it becomes apparent to the judge conducting that hearing that the interests of justice would be best served by the hearing taking into account arguments on matters which relate to a ground in respect of which permission has been refused. There obviously has to be real justification for permitting that to happen; but judges can be relied upon to ensure that the discretion is not misused. It is the obligation of parties to applications for judicial review, as in the case of oral litigation, to give as much notice as possible of their full case and to bring forward their full case at the start. However, quite apart from the specific circumstances indicated in paragraph 16 of Lightman J's judgment, there are going to be other situations where good sense makes it clear that the argument should be wider than it would otherwise be if it was confined to the grounds where permission has been granted. I would not seek to anticipate all the situations where that could happen. As long as a judge recognises the need for there to be good reason for altering the view of the single judge taken at the permission stage, no further sensible guidance can be provided. The circumstances which can occur are capable of varying almost without limit, and so each case must be considered having regard to its circumstances. The idea that there has to be a new situation for the permission to be extended is one which I would regard as wrong. 17. In exercising discretion it is sometimes necessary to bear in mind that if permission is refused in respect of a particular ground, the Court of Appeal on an appeal from the hearing at first instance will not be able to consider that matter where it is clearly desirable that it should be considered. 18. Turning to the facts of the present case, and bearing in mind the discretion which Goldring J in fact had, I have come to the conclusion that if he had not applied the guidance given by Lightman J in Opoku, the right conclusion for him to have come to is that the argument upon which Mr Scrivener wished to rely in relation to Article 5 was so closely related to the argument in regard to Article 6 that it was preferable in everybody's interests that the full argument was heard. Mr Crow submits that the argument in regard to Article 5 is hopeless, not least because it had been dealt with by Turner J in The Queen on the application of West v the Parole Board (CO/350/01, 26.4.92). Mr Crow is right that Turner J had dealt with the point. If his judgment is correct, that may well mark the demise of the Article 5 point. However, the Article 5 point and the Article 6 point are very closely interrelated. It would be highly undesirable, in my judgment, for the Article 6 point to be considered without also considering the Article 5 point. The desirability of the points relating to Articles 5 and 6 being heard together is emphasised by Regina (Giles) v Parole Board and another[2003] 2 WLR 196 . That case has been the subject of appeal to the House of Lords where argument has been heard but the opinion of their Lordships as to the outcome has not yet been given. Giles is again a case which is capable of being distinguished from the present case. The decision in Giles is not likely to be finally determinative of the outcome of the present case, but it could be influential. It is difficult for this court today to forecast what will be the relevance of the decisions of their Lordships' House in relation to Giles on the outcome here. Accordingly it would be preferable to know their Lordships' views before reaching a conclusion as to the argument Mr Scrivener wishes to raise under Articles 5 and 6.”
“clear, compelling and conclusive”