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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shaw & Anor, R (on the application of) v Secretary of State for the Home Department  EWHC 42 (Admin) (18 January 2013)
Cite as:  EWHC 42 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| THE QUEEN (on the application of ZONITE DAVINE SOPHIA SHAW and JAVIAN ANTHONY MORTLEY SHAW)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Sarabjit Singh (instructed by Treasury Solicitors) for the Defendant
Hearing date: 19th December 2012
Crown Copyright ©
Clive Lewis QC:
(1) they had an in-country right of appeal which they were unable to exercise because of the removal;
(2) the written notice of the decisions did not include, and were not accompanied by, a statement of the grounds on which they could appeal and did not say whether the appeal could be brought while in the United Kingdom;
(3) the cancellation of their limited leave was not authorised by a chief immigration officer as required by the Defendant's policy, that is para 3.4 of chapter 1 of section 9 of the Immigration Directorates' Instructions;
(4) the decision to cancel their leave was irrational;
(5) the Defendant failed to have regard to the best interests of the second Claimant, as a child, having regard to section 55 of the Borders, Citizenship and Immigration Act ("the 2009 Act");
(6) the issuing of removal directions without giving the Claimants adequate time to seek legal advice was contrary to the Defendant's own policy or to the common law right of access to the courts;
(7) removal breached their right to private life under Article 8(1) ECHR and that removal was not justified under Article 8(2) as either (a) removal was not in accordance with law because of the invalidity of the removal directions as a matter of domestic public law or (b) removal was disproportionate in all the circumstances.
"On the 29 September 2009 you were given leave to remain in the UK as a student but I am satisfied that there has been such a change of circumstances in your case since the leave was given that it should be cancelled.
The change of circumstance in your case is that you obtained your leave to enter and remain as a student but you are now seeking to enter for the purpose of full time employment.
I have reached this decision because you have admitted to working full time for The Banquets Group at Banquets Chicken limited in Birmingham for up to 32 hours per week.
I do not accept your assertion that you have been studying since 2003 since you are unable to provide any evidence of any academic achievement apart from certificates relating to cleaning and support services, food hygiene and first aid which relate to the employment you have admitted to undertaking both full and part time while you were in the UK and not to any long term academic goal. The certificates you presented from 2007 to date do not reflect the extended period of study you claim to have undertaken since they relate to basic and intermediate IT skills and two unremarkable certificates in marketing and business communication which indicate an average level of ability.
I therefore cancel your continuing leave under paragraph 2A(8) of Schedule 2 to the Immigration Act of 1971 and paragraph 321A(1) of the Immigration Rules (HC395).
Furthermore you are now seeking entry for the purpose of employment but you are a visa national and you have failed to produce a passport or other identify document endorsed with a valid and current UK entry clearance issued for the purpose for which entry is sought. I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395).
Furthermore in view of your repeated attempts at deception when questioned about your hours at your second job for We Clean limited, any future applications for leave to enter/remain in the UK will be refused under paragraph 320(7b) of the Immigration Rules for a period of one year following your departure from the United Kingdom."
THE LEGAL FRAMEWORK
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen –
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely –
(i) a condition restricting his employment or occupation in the United Kingdom….."
"(2) He may be examined by an immigration officer for the purpose of establishing –
(a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled…."
"..for the purpose of establishing whether the leave should be cancelled on the ground that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance".
"(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.
"(9) Cancellation of a person's leave under sub-paragraph (8) is to be treated for the purpose of this Act and Part 5 of the Nationality, Immigration and Asylum Act 2002 as if he had been refused leave to enter at a time when he had a current entry clearance".
"(1) A person may not appeal against a refusal of leave to enter the United Kingdom unless –
(a) on his arrival in the United Kingdom he has entry clearance, and
(b) the purpose of his entry specified in the entry clearance is the same as that specified in his application for leave to enter.
"(2) Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g)."
"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
"(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).
"(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if –
(a) at the time of the refusal the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant had entry clearance.
"(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.
"(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2(A)(9) of Schedule 2 to the Immigration Act 1971 (c.77) resulting from cancellation of leave to enter by an immigration officer –
(a) under paragraph 2A(8) of that Schedule, and
(b) on the grounds specified in paragraph 2A(2A) of that Schedule.
"(4) This section also applies to an appeal against an immigration decision if the appellant -
(a) has made an asylum claim or a human rights claim, while in the United Kingdom….. "
THE GROUNDS OF CHALLENGE