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Cite as: [2003] ScotCS 247

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Manz & Ors v. Secretary State Home Office [2003] ScotCS 247 (26 September 2003)

OUTER HOUSE, COURT OF SESSION

P1188/01

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD BRACADALE

in the Petition

for

Judicial Review

of

RUSSELL EUGENE MANZ AND OTHERS

Pursuers;

against

THE SECRETARY OF STATE FOR THE HOME OFFICE

Defender:

 

________________

 

Petitioners: Stark; Blacklock Thorley

Respondent: Lindsay; The Advocate General (Scottish Executive)

26 September 2003

Introduction

[1]      By notices served on or about 13 August 2000 the respondent refused each petitioner leave to enter the United Kingdom. In this application for judicial review the petitioners seek reduction of the decisions to refuse leave to enter.

The Immigration Rules

[2]     
Entry into and stay in the United Kingdom are regulated by the Immigration Act 1971. Section 3(2) provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter..."

[3]     
The Secretary of State has so laid, and from time to time has made changes in, the Immigration Rules. The categories of persons covered by the Immigration Rules include a person who seeks leave to enter the United Kingdom as a retired person of independent means. Rules 263-270 deal with the requirements for leave to enter the United Kingdom as a retired person of independent means. In its form at the relevant time Rule 263 stipulated:

"The requirements to be met by a person seeking leave to enter the United Kingdom as a retired person of independent means are that he:

    1. Is at least 60 years old; and
    2. Has under his control and disposable in the United Kingdom an income of his own of not less than 25,000 per annum; and
    3. Is able and willing to maintain and accommodate himself and any dependants indefinitely in the United Kingdom from his own resources with no assistance from any other person and without taking employment or having recourse to public funds; and
    4. Can demonstrate a close connection with the United Kingdom; and
    5. Intends to make the United Kingdom his main home; and
    6. Holds a valid United Kingdom entry clearance for entry in this capacity."

Rule 265 stipulates:

"Leave to enter as a retired person of independent means is to be refused if a valid United Kingdom entry clearance for entry in this capacity is not produced to the Immigration Officer on arrival."

[4]     
It is recognised that exceptionally leave to enter and remain may be granted outwith the Rules.

[5]     
The requirements for entry clearance are stipulated in Rules 24-30C. Rule 24 stipulates:

"A visa national and any other person who is seeking entry for a purpose for which prior entry clearance is required under these Rules must produce to the Immigration Officer a valid passport or other identity document endorsed with a United Kingdom entry clearance issued to him for the purpose for which he seeks entry. Such a person will be refused leave to enter if he has no such current entry clearance. Any other person who wishes to ascertain in advance whether he is eligible for admission to the United Kingdom may apply for the issue of an entry clearance."

Rule 28 is in the following terms:

"An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An applicant for an entry clearance who is seeking entry as a visitor must apply to a post designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Any other application must be made to the post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living"

The Factual Background

[6]     
The history of the involvement of the petitioners with the Immigration Service is lengthy and complicated. From the pleadings, the productions, evidence that was led on certain disputed matters and the submissions of counsel I am able to establish the following chronology of events. The petitioners are citizens of the United States of America. The first two petitioners are man and wife and the third, fourth and fifth petitioners are their children. There are more, older children in the United States of America. The first and second petitioners had a farm in Connecticut. They also owned a flat in New York City, which they let out. They had some historical connections with Scotland and in 1994 came to Montrose as visitors. They decided that they would like to move to Scotland on a permanent basis. In 1994 they took advice from immigration officials at the British Embassy in New York as to the requirements for entering the United Kingdom as a person of independent means.

At that time, the rules were different and the advice from the Embassy in New York was to the effect that there was no age requirement for someone seeking leave to enter as a person of independent means. In addition, there was no income requirement but there was a requirement for substantial capital. Against that background, the first and second petitioners took steps with a view to move to the United Kingdom. They began to dispose of parts of the farm and the stock. For a period of some fourteen years prior to 1996 the second petitioner's aged mother, Mrs Reama, had lived with them in the United States. In August 1996 the first two petitioners brought Mrs Reama to Montrose and placed her in the Fordmill Nursing Home there. At that stage they indicated to the Immigration Service that they themselves were visiting the United Kingdom for two weeks but were intending in due course to settle in the United Kingdom. They indicated that bringing Mrs Reama to Montrose was the first step in their arrangements. On her behalf they sought leave for her to enter the United Kingdom as a retired person of independent means. In the case of Mrs Reama no prior entry clearance had been obtained. However, in the circumstances the Immigration Service at Aberdeen agreed to consider the case exceptionally in the absence of entry clearance, and sought to ascertain whether Mrs Reama met the other requirements of the Immigration Rules. By this stage the requirements for leave to enter as a person of independent means had changed with respect to age, income and capital. In the event, Mrs Reama did not meet these requirements in that she did not have under her control and disposable in the United Kingdom, an income of her own of not less than 25,000 per annum. Furthermore, she was unable to demonstrate a close connection with the United Kingdom. At that stage the first petitioner stated that he had British cousins in the United Kingdom and it was because of these connections that he and his wife wished to settle in the United Kingdom. In a letter dated 15 October 1996 (7/1 of process), a Chief Immigration Officer set out these details to Mr Andrew Welsh MP who had been consulted by the first and second petitioners about Mrs Reama's case. It was also at this stage made clear that the Immigration Service would not require the departure to the United States of America of Mrs Reama until she was fit to travel.

[7] Among the changes to the Rules was the introduction of an age requirement of 60 years. In 1996 the petitioners learned of this change which meant that the first petitioner, who was then aged 56 years, would require to wait until he was 60 years of age before he could apply for entry clearance and leave to enter.

[8]     
In September 1997 the Immigration Service, having unsuccessfully attempted to obtain a medical assessment of Mrs Reama in order to ascertain her fitness to travel, decided in her case to exercise discretion and authorise entry outside the Immigration Rules. This was explained in a letter dated 10 September 1997 from the Inspector to Mr Welsh MP (7/3 of Process).

[9]     
On 27 November 1998, an official from the Immigration and Nationality Directorate wrote to Mr Welsh MP (7/4 of process). This was in response to an earlier letter from Mr Welsh on behalf of the petitioners in connection with their desire to settle in the United Kingdom. The official's letter explained the requirements of entry clearance and the procedure for application. It was explained that the family would require to be in possession of the appropriate entry clearance before they entered the United Kingdom. The address of the nearest British Post to which they should apply was given as the British Consulate General in New York. In addition, the requirements of Rule 263 of the Immigration Rules to be met by a person seeking leave to enter the United Kingdom as a retired person of independent means were set out.

[10]     
During the period between 1998 and April 2000, on a regular basis the petitioners used their visitors' passports to obtain leave to enter as visitors to the United Kingdom for 6 months. From time to time they left the United Kingdom to go on holiday. On each occasion when they re-entered they obtained a stamp on their passports giving leave to enter for a 6 month period. It was plain, and it was accepted by Mrs Stark, who appeared on behalf the petitioners, that this was a device in order to allow them to enter and remain in the United Kingdom. During this period they effectively set up home in Montrose. They purchased a house. They integrated into the community, taking part in church and other activities, and the children attended the local school. I pause to note that the attendance of the children at a State school was in itself contrary to the rules regulating leave to enter as a visitor.

[11]     
In the Spring of 1999 a conversation with an Immigration Officer allegedly took place when the first and second petitioners were coming through Glasgow Airport. There was a dispute about what had happened and I heard evidence from the first petitioner and Peter McMinn, an Immigration Officer. In his evidence, the first petitioner said that in the Spring of 1999 when he and his wife were coming through immigration control at Glasgow Airport, he had a conversation with the Immigration Officer (Mr McMinn). He explained to the officer that he intended to apply for "residency" but was waiting until he was 60 years old. According to the first petitioner, Mr McMinn told him that he could apply right here and gestured with his thumb over his shoulder. He said that he could apply "right across the road".

[12]     
Mr McMinn in his evidence said that he had no recollection of a conversation with the petitioner. He said that at times he dealt with a thousand passengers a day, of which, two hundred would be citizens of the United States or Canada. It was not unusual for citizens of the United States or Canada to want to settle in Scotland. He said that he did not think that he would have said such a thing to the first petitioner because it was not possible to apply for entry clearance within the United Kingdom. He did however concede that he was aware that the requirement for entry clearance could be waived at the discretion of a chief officer.

[13]     
In cross-examination the petitioner said that he would not forget a conversation of this kind because the officer had told them that they could apply right here and that he regarded that as a godsend.

[14]     
So far as the evidence relating to this alleged conversation between the first petitioner and Mr McMinn in March 1999 is concerned, I accept that some conversation did take place. I accept that Mr McMinn directed the petitioners to the public enquiry office. It seems to me that the kind of detail of pointing out a place described by the first petitioner is not the sort of detail that would be made up. I consider that it is unlikely that Mr McMinn would have told the petitioners that they could obtain entry clearance at the enquiry office, but, standing his knowledge that entry clearance could be waived at the discretion of a chief officer, I conclude that he probably did give them some indication that their application for leave to enter could be advanced by making enquiries at the public office. I am inclined to think that the first petitioner took more comfort and read more into the remarks of Mr McMinn than were intended.

[15]     
The first petitioner turned 60 years of age on 30 January 2000. While he had now reached the age where he could apply for leave to enter as a retired person of independent means, in terms of the Rules he could not do so without obtaining entry clearance prior to seeking leave to enter. Entry clearance required to be obtained before arriving in the United Kingdom. Because of the way in which the petitioners had used their visitors' passports they were, of course, already living in the United Kingdom.

[16]     
As it happened, matters came to a head in the following way. In accordance with their practice the petitioners arrived at Glasgow Airport from Malaga on 13 April 2000 and sought entry as visitors for 6 months. On this occasion they were dealt with by Immigration Officer, Gavin White. There was some controversy in the pleadings as to what had transpired on this occasion and this was the second matter on which I heard evidence. I heard evidence from the first petitioner and from Mr White. The first petitioner described Mr White as being "nice and friendly" and sympathetic to their situation. By this time they had made what they described as an application for entry clearance. Mr White told them that he would keep their passports and they should go home and send him copies of all the applications and paperwork. Mr White told them that if there were no skeletons in the cupboard, he would take care of it and stamp their passports. The first petitioner denied telling Mr White that he was going to leave the country (United Kingdom) in 6 months.

[17]     
In his evidence, Mr White said that when he asked them what they were going to do, the petitioners told him that they were living in Montrose and had been for 18 months. The first petitioner told him that an application had been made by their solicitors to the Home Office to remain on a retired basis. They showed him a copy of a document from their solicitor, saying that documents had been submitted to the Home Office in connection with their application. Mr White said that he took from that that they had lodged an application and he granted them temporary admission. He asked them to send to him copies of the application they had made to the Home Office so that he could see the basis of the application. 7/7 of process was a summary that he prepared for the Passenger Casework Section of the Home Office which he understood dealt with difficult cases. The second petitioner said that they had been told by Mr Welsh MP and Skene Edwards, the solicitors who had acted in connection with Mrs Reama's application, that they could apply "in-country" and they had claimed to have done that. The first petitioner claimed that he met the other requirements for entry as a retired person of independent means. Mr White said that in discussion with the Chief Immigration Officer, Mr R Gillespie, it was decided that the case should be considered in the absence of entry clearance. He said that that seemed to be the best way of dealing with the family. The alternative was to send them back to the United States to get entry clearance and then come back. That seemed to be a waste of time and he did not wish to be unreasonable or oppressive. He said that such consideration would depend on confirmation of there being nothing adverse in their records at home office or Aberdeen. He explained by the words nothing adverse, he meant something like the service of a deportation order served or anything that would negate the course of action to be taken. He said that he also wanted to see whether the advice which had been given was true.

[18]     
So far as the evidence relating to the meeting between the petitioners and Mr White in April 2000 is concerned, it seems to me that there is not really any significant issue between the parties and that the summary given by Mr White in paragraph 5 of 7/7 of process, accurately reflects what happened. Paragraph 5 is in the following terms:

"I discussed the case with chief immigration officer Mr R Gillespie who said that if the family could produce evidence that they met the requirements of paragraph 263, consideration would be given to granting leave to enter without EC. I duly advised the family of this but made it clear that such consideration would depend on confirmation of there being nothing adverse in their records at Home Office or Aberdeen. I granted temporary admission on IS 96 to 37 High Street, Montrose. I also gave them another copy of the relevant section of the rules."

I accept that Mr White may well have used words like "no skeleton in the cupboard" in conversation with the petitioners.

[19]     
On 28 April 2000 Mrs J Parker of the UK Immigration Service at Aberdeen Airport, wrote to the first and second petitioners asking them to attend for interview on 5 May and instructed them to bring with them any supporting documents which would be relevant to the request for leave to enter the United Kingdom as a retired person of independent means (6/27 of process). In particular, she requested that they should produce evidence of their income for at least the last 12 months. The letter indicated that this information was required in order to assess the merits of their application and provide the basis for further interview. On 5 May the first petitioner was interviewed by Mrs Parker, whose notes were produced as 7/5 of process. In the course of the interview, Mrs Parker put to the first petitioner that his income appeared to be from the sale of properties which he had purchased in the United Kingdom, renovated and then sold for profit. The first petitioner agreed that this was so. She put to him that he appeared to working or at least operating a business and he indicated that that was what he did and that he was not ready to retire. Mrs Parker went on to say to him that she did not believe that he met the requirements of the Rules to qualify as a retired person of independent means.

[20]     
After the interview on 5 May 2000, the first and second petitioners consulted their solicitors who wrote on 16 May 2000 to the Immigration Service at Aberdeen Airport (6/28 of process). In this letter it was claimed that what the first petitioner was doing was managing his property investments and that it constituted a form of hobby. The activity also provided an opportunity for the children to learn the concept of hard work. The letter went on to explain that the income of the first two petitioners came from a number of sources. These included interest from their UK bank accounts amounting to 1,489.97. The second source of income was interest on loans granted during the course of the sale of various properties in New York. This amounted to approximately 7,500 per annum. In addition, they owned several plots of ground in the United States, valued at over $194,000. It was anticipated that in time these plots would be sold and the capital transferred to the United Kingdom. This would produce approximately 120,000 worth of capital. They also had disposable assets in the United Kingdom of approximately 180,000. A further source of income was their property investments including the house in which they lived as a family home. At the request of the solicitors acting for the petitioners, the petitioners' case was transferred to the Glasgow office of the Immigration Service. (6/29 of process).

[21]     
I have already referred to the note sent by Immigration Officer Gavin White to the Passenger Casework Section of the Immigration Service on 4 June 2000 (7/7 of process). In the final paragraph he said this:

"The history of this family shows their determination to settle in the UK over many years. They ignored the requirement to obtain an EC and the principal applicant Mr Manz is not retired and clearly operates a business in the UK and he has other business interests in the USA. The close family connection, leaving aside Mrs Reama who was granted ILR after RLE exceptionally, consists of a great grandfather born here and the (non-substantiated) existence of 'cousins'. Their children attend state schools. The argument put forward by the solicitors that this is a form of investment management is specious. In these circumstances I would be grateful if you could look at the financial aspects of this case and advise on the application as a whole. I appreciate that any adverse decision would be strongly opposed by the family".

6/32 of process is a note on the file of the solicitors recording a telephone conversation with Mr White in which it is noted that the papers have been sent to the Home Office for legal advise on the "business aspect".

[22]     
On 13 August 2000 the first petitioner was interviewed by Mr Gillespie, Chief Immigration Officer. Mr Gillespie's notes were produced as 7/6 of process. In the course of this interview the first petitioner denied that he was engaged in business by developing property. He explained that what he was doing by way of buying flats and fixing them up was something in the nature of a hobby. In addition, he claimed that the exercise helped to instil the work ethic in his children. This echoed the propositions advanced by the solicitors in their letter dated 16 May 2000 (6/28 of process). I shall examine the contents of this interview in more detail later in connection with the question of lack of entry clearance.

[23]     
Thereafter, each of the petitioners was served with a notice of refusal of leave to enter (6/1-5 of process). These were dated 13 August 2000 and must have been prepared in the immediate aftermath of the interview with Mr Gillespie. The notice served on the first petitioner was in the following terms (those served on the other petitioners being suitably adjusted to reflect their relationship to him):

"You have asked for leave to enter the United Kingdom as a retired person of independent means but under the immigration rules you are required to have a valid entry clearance for this purpose and you have no such entry clearance".

[24]     
Thereafter the case of the petitioners was taken up by Mike Weir MP who had replaced Mr Welsh as the local MP, Mr Welsh having become a MSP. Mr Weir wrote to the Home Office on 18 June 2001. In reply, dated 7 August 2001 (7/9 of process), after reviewing the facts, the Chief Immigration Officer wrote:

"After careful consideration of all the facts and after reference to a CIO, Mr Manz and his family were refused entry."

I shall return to the contents of this letter at a later stage.

Submissions of Counsel

[25]     
On behalf of the petitioners Mrs Stark submitted that the documentation demonstrated that the petitioners had in reality been refused entry on the ground that they had no entry clearance. She submitted that if that were so, the respondent had fettered his discretion to grant leave without entry clearance by too strict an adherence to the letter of the Immigration Rules. Further, she submitted that to refuse leave to enter and remain on the ground of lack of entry clearance was contrary to the legitimate expectation created by the respondent that entry clearance would not be insisted upon.

[26]     
She went on to submit that esto leave was really refused on the ground that the first petitioner was working, in the circumstances of this case, that was unlawful. Finally, she submitted that if leave was refused on the ground of insufficient connection, then that was so unreasonable as to be unlawful.

[27]     
Mrs Stark submitted that although in Answer 2 the respondent had averred three reasons for the refusal, namely, the lack of entry clearance; the fact that the first petitioner was working; and the lack of close connection with the United Kingdom, in reality the only true reason was the lack of entry clearance. The other reasons she submitted, were afterthoughts. In support of her submission that the documents demonstrated that the petitioners had in reality been refused entry on the ground that they had no entry clearance, Mrs Stark founded on the notices of refusal of leave to enter which was served on each of the petitioners. Mrs Stark submitted that the notices stated in terms that the reason for refusal was the lack of entry clearance. No other reason was specified. Mrs Stark also relied on what was said in a number of the letters sent by Immigration Officers to the MPs and solicitors who acted on behalf of the petitioners. On 29 November 2001, the solicitors acting on behalf of the petitioners in the present petition for judicial review, wrote to the office of the solicitor to the Advocate General for Scotland on behalf of the petitioners, effectively asking the respondent to reconsider the decision. On 7 February 2002, Chief Immigration Officer, Anita Bolland, replied to this letter. Her reply was produced as 6/42 of process. In the course of this letter particular stress was placed on the importance of the requirement for entry clearance. It was explained that the requirement was no mere formality and it played a critical role in the delivering the Government's overall policy objectives:

"It may be helpful if I also explain that the entry clearance requirement is no mere formality. The system was described in the Government's 1998 White Paper as playing a 'critical role in delivering the Government's overall policy objectives'. If the entry clearance requirement is waived in anything other than the most exceptional case, it will encourage others to flout the immigration rules. It is also unfair to those who do follow the correct procedures. Those people are entitled to expect the Secretary of State to enforce the entry clearance requirements fairly in all cases, save in a case which is considered to be exceptional. I am afraid that this is not a case where the exercise of discretion is appropriate."

Mrs Stark submitted that it was clear from these quotations and other passages in the earlier letters that the absence of entry clearance was uppermost. She did, however concede that earlier in the letter of 7 February 2002 reference was made to other reasons:

"The immigration service interviewed Mr Manz further on 13 August 2000. Having carefully considered all of the facts of the case, he was not satisfied that it was appropriate to exercise discretion and grant entry outside the rules. In reaching this conclusion, the immigration officer took into account that Mr Manz was aware of the entry clearance requirement but had nevertheless chosen to ignore it. He was also not satisfied that Mr Manz met the other requirements of paragraph 263 of the rules as a greater part of his income for 1999 had come from the renovation and sale of property in the UK. Mr Manz admitted during the course of that interview that he was working and operating a business here as he did not wish to retire. With the authority of a chief immigration officer, Mr Manz and his family were refused leave to enter."

[28]     
Mrs Stark went on to submit that by acting in this way the respondent had fettered his discretion and not taken sufficient account of the particular circumstances of this case. Notwithstanding the terms of the rules, the law required the respondent, in the exercise of discretion, to treat each case on its merits. She made reference to the cases of British Oxygen Co Ltd v The Minister of Technology [1971] AC 610 and Cinderella's Rockafella's Ltd v Glasgow District Licensing Board 1994 SCLR 591. She drew attention to a passage in the speech of Lord Reid in British Oxygen Co at page 625 C-D:

"The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' (to adapt from Bankes LJ on page 183). I do not think that there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Minister or large authority may have had to deal already with a multiple of similar applications and then they will almost certainly have involved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing. In the present case the respondent's officers have carefully considered all the appellants have had to say and I have no doubt that they will continue to do so. The respondent might at any time change his mind and therefore I think that the appellants are entitled to have a decision whether these cylinders are eligible for grant."

She also referred to the passage in the Opinion of Lord Prosser in Cinderella's Rockafella's at page 599E where His Lordship said:

"It is trite that an authority vested with a discretion must not merely apply a general policy in all cases, without considering whether it is right in particular cases to do so."

Mrs Stark submitted that in the present case, the respondent did not listen to the novelty or the particular circumstances of the petitioners' situation. She said that the exceptional circumstances were as follows: the petitioners had received advice under the old rules in 1994; in 1996 they put Mrs Raema in the nursing home; they commenced the sell off of their properties in the United States; and they bought property in Montrose. They had taken a number of steps some of which were irrevocable. When the rule was changed with respect to age, they could not proceed until the age requirement was met. She submitted that the combination of all these circumstances made the case exceptional. The respondent had not properly considered these matters.

[29]     
Next, Mrs Stark submitted that the actings of the Immigration Officers during and after the meeting in Glasgow in April 2000, including what was said by Mr White after consultation with Mr Gillespie, the interviews with Mrs Parker and Mr Gillespie, the requests for information, and the supply of information by the solicitors were all calculated to create in the minds of the petitioners a legitimate expectation that the applications would be looked at on their merits.

[30]     
Mrs Stark referred to a number of cases on the matter of legitimate expectation, including R v The Secretary of State for the Home Department ex parte Khan [1985] 1 All ER 40; Adetutu Iyabode Oloniluyi v The Secretary of State for the Home Department [1989] Imm AR; and R v The Secretary of State for the Home Department ex parte Mapere [2001] Imm AR.

[31]     
I turn at this stage to the submissions made by Mr Lindsay on behalf of the respondent with respect to the submissions that there was an unlawful fettering of discretion and the question of legitimate expectation. With respect to the submission that there had been an unlawful fettering of the discretion on the part of the respondent because he had failed to have regard to the individual circumstances of the petitioners, Mr Lindsay accepted that the respondent did have a discretion and did require to have regard to the individual circumstances of a particular case. Mr Lindsay submitted that in this case it was clear from the contents of the correspondence and other documents that the particular circumstances of the case had been considered. It could not be said that there was any unlawful fettering of the discretion.

[32]     
Mr Lindsay accepted that what transpired in the course of the meeting and discussion with Mr White on 13 April 2000 did create a reasonable expectation but submitted that the reasonable expectation was fulfilled. He submitted that the petitioners were seeking to extend that reasonable expectation beyond the proper bounds of what was created. The petitioners were seeking to argue that entry clearance had been waived completely and should not have figured again. The respondent's contention was that the extent of the concession was that notwithstanding the failure to present entry clearance the respondent would nevertheless consider the merits. In other words Rule 265 was being waived. However, Mr Lindsay submitted, the petitioners were not being told that entry clearance would be forgotten about completely and would never feature in any decision made by the Secretary of State. What was being said was that the merits would be looked at notwithstanding the absence of entry clearance and a decision would be made. That was done, and to that extent, the legitimate expectation was fulfilled. At no time was any legitimate expectation created that the absence of entry clearance would never have been taken into account at any stage. Contrary to the claim made by the petitioner that he had received incorrect advice from the solicitor and the Member of Parliament, it was clear that the petitioners were told on several occasions that they would have to apply for entry clearance in the United States. The Secretary of State decided that they had deliberately ignored the requirement for entry clearance. There was nothing unlawful or unreasonable in taking the deception with respect to entry clearance into account.

[33]     
I now return to the submissions of Mrs Stark who went on to submit that, esto leave was really refused on the ground that the first petitioner had taken employment within the meaning of Rule 263, in the circumstances of this case, that refusal was unlawful. Further, she submitted that if leave was refused on the ground of insufficient connection with the United Kingdom, then that was so unreasonable as to be unlawful.

[34]     
So far as the suggestion that the first petitioner had taken employment within the meaning of Rule 263 was concerned, Mrs Stark submitted that this never emerged as a reason for refusal until the present petition. She submitted that the activities upon which the first petitioner was engaged did not amount to working. She submitted that the petitioner was free to manage his assets without it being called working or taking employment. She suggested that if he had put his money into shares, bonds or bank accounts and managed his money, this would not be described as working. She said there was not a great deal of difference between that and what he was doing. He was managing his capital assets. She pointed out that the petitioner's income was not relevant as an issue and it was not claimed by the respondent that income requirement was not met.

[35]     
Mrs Stark submitted that the third reason for refusal namely, the lack of close connection with the United Kingdom was unreasonable on the Wednesbury principle. Under to a passage in Macdonald's Immigration Law at page 404 and a number of cases including Yuen-on Fung v The Entry Clearance Officer Hong Kong [1984] Imm AR; and R v The Immigration Appeal Tribunal ex parte Nader Zandfani [1984] Imm AR page 213, she submitted that the factors in favour of establishing a close connection with the United Kingdom on the part of the petitioners were that they were English speaking; that they had property in the United Kingdom; that they had lived there for 5 years and had bought property in the United Kingdom prior to that. They were making a contribution to the community and involved themselves in the community. In addition, the great grandfather and great grandmother of the first petitioner were born in Montrose. Mrs Stark accepted that the additional documentation relating to these connections (6/51 of process) were not before the Immigration Officer.

[36]     
In response to the attack by the petitioners on the conclusion of the respondent that the petitioners did not meet the requirements of Rule 263 with respect to taking employment and demonstrating close ties with the United Kingdom, Mr Lindsay pointed to the limitations of judicial review. The jurisdiction of judicial review is a supervisory one. The Court is not to decide on the merits. It was for the respondent to make a decision on the merits. He referred to a passage dealing with Wednesbury unreasonableness in the textbook Judicial Review (Lord Clyde) at page 571, paragraph 21.05. He submitted that the test of unreasonableness was a high hurdle for the petitioners to get over. It is not enough that it would have been open to come to an alternative decision. The petitioners have to demonstrate that no reasonable decision-maker could have come to that conclusion.

[37]     
With respect to the question of taking employment, Mr Lindsay submitted that the petitioners had not demonstrated that the respondent had fallen outwith the range of reasonable decisions. They had not demonstrated that no reasonable decision-maker could have come to that decision and accordingly this line must fail.

[38]     
Mr Lindsay referred to the definition of employment in Rule 6 of the Immigration Rules. In terms of the interpretation rule employment includes self-employment and being engaged in business. It is a very wide definition which includes paid and unpaid employment. The information placed before the respondent by the petitioners indicated that the first petitioner was engaged in employment within the meaning of the rules. Further, said Mr Lindsay, in his interview the first petitioner accepted that he was carrying on a business (7/5 of process, page 3-4). The suggestion that this amounted to a hobby was a later suggestion. The documents produced in 7/12, a bundle of documents produced to the Immigration Officer in support of the application, clearly show that the development of the properties was for profit. Even if it was a hobby, it still fell within the definition of employment.

[39]     
On the question of close ties with the United Kingdom, Mr Lindsay submitted that the decision by the respondent that the petitioners had not demonstrated close ties was a reasonable one. The only information supplied to the respondent was one sheet in 7/12 of process. In his interview the first petitioner referred to two second cousins, whom he named. He had to go back to the 1880s to find a British relative and no birth certificates were produced. So far as the question of them living in Montrose for a period of time was concerned, Mr Lindsay pointed out that that was on the basis of a device to circumvent the rules by using a visitors' stamp for 2 years. In the circumstances the decision was a reasonable one and could not be said to be outwith the band of reasonable decisions.

Discussion and decision

[40]     
The first question to address is whether Mrs Stark is well founded in her submission that the true reason for refusal of leave to enter was the lack of entry clearance. I am unable to accept Mrs Stark's assertion that the first time that the question of taking employment was mentioned as a reason for refusal was in the present action. I have already referred to the letter dated 7 August 2001 from Chief Immigration Officer Borland to Mike Weir MP who by that stage had taken up the petitioners' case (7/9 of process). The letter reviewed the case and includes the following paragraph:

"After careful consideration of all the facts and after reference to a chief immigration officer, Mr Manz and his family were refused entry. The immigration officer was not satisfied that Mr Manz met the requirements of the Immigration Rules for entry as a retired person of independent means. In reaching this conclusion he took into account that Mr Manz appeared to be working in this country, had failed to demonstrate close ties to the United Kingdom, and lacked the necessary entry clearance."

A letter in similar terms was sent to Andrew Welsh MSP on 8 October 2001.

[41]     
It is unfortunate, as Mr Lindsay recognised, that the notices of refusal were expressed in terms that suggested that the only reason for refusal was lack of entry clearance. It is also correct to say that some of the later correspondence, particularly from Chief Immigration Officer Borland, lays considerable stress on the question of lack of entry clearance. However, in order to identify the reason or reasons for refusal it is necessary to have regard to the whole circumstances disclosed in the chronology of events and the correspondence. The decision at the meeting at Glasgow Airport on 13 April 2000 to consider the merits of the case was followed by the letter dated 28 April 2000 from Mrs Parker (6/28 of process) which made it clear that she was addressing the merits. The notes of the interview on 5 May 2000 (7/5 of process) confirm this. As a result of a request at that meeting further information was provided by the solicitors acting for the petitioners. The memorandum sent by Mr White to the Passenger Casework Section on 4 June 2000 (7/7 of process) asked them to look at the financial aspects and sought advice on the application as a whole. The passage in the letter dated 7 August 2001 to Mr Weir which I have quoted above confirms that the merits were addressed. When the available evidence is examined in this way it becomes clear, in my opinion, that there were three reasons for refusal of leave to enter, namely: that the petitioners did not have prior entry clearance; that the first petitioner was deriving an income from engaging in employment; and that the petitioners had failed to demonstrate close ties with the United Kingdom. In my opinion Mrs Stark's submission that the only real reason was lack of entry clearance is not well founded on the available evidence.

[42]     
The next question to consider is the extent of the reasonable expectation that the merits would be considered without entry clearance. That a reasonable expectation was created is not in dispute. The meeting with Mr White at Glasgow Airport on 13 April 2000 is central to this issue. Although Mr White did say at the end of his evidence in chief that he wanted to check whether the advice given was true it seemed to me that that was something of an afterthought. The main thrust of his evidence was to the effect that the decision to consider the merits without entry clearance was a sensible pragmatic one. The family were settled in Scotland. It seemed to be a waste of time to send them back to the United States to get an entry clearance and come back. Mr White said that he did not wish to be unreasonable or oppressive. When he referred to the need to check for anything adverse in the records he had in mind the existence of a deportation order or something of the sort. In my opinion the reasonable expectation created at the meeting on 13 April 2000 was that the case would be considered on its merits in the absence of entry clearance and that the requirements of Rule 265 would be waived. I am fortified in that view by considering the sequence of events that followed. While the question of entry clearance was touched upon in the interview of 5 May, the main thrust of the inquiry at that stage was to ascertain whether the requirements of Rule 263 were satisfied. In addition, further information with respect to income was requested and supplied.

[43]     
It is necessary to look in a little more detail at what transpired at the interview on 13 August 2000. In this interview the question of close ties was explored a little and there was some brief questioning addressing the issue of whether the first petitioner was operating a business. In the course of the interview Mr Gillespie, the Chief Immigration Officer, asked why petitioner had not obtained entry clearance prior to coming to United Kingdom. The first petitioner explained that he had contacted embassy at New York and had been sent papers by the embassy. He did not qualify immediately. He went on to explain that on one of their trips they were told by an Immigration Officer that it would be easier to file from here, which suited them. They waited till he was 60. He said that he thought that they had been given that advice by the Immigration Officer about 3 years ago. Reference was made to applying "right across the street". The first petitioner was clearly referring to the conversation with Mr McMinn about which I heard evidence. The first petitioner went on to explain to Mr Gillespie that the rules had changed over the years and they had received different messages at different times. Later in the interview Mr Gillespie said "I don't want to labour the point but your present difficulties with Immigration are down to the same thing - that you don't have a prior entry clearance as a retired person of independent means. Do you see my point?" The first petitioner replied "The only reason was that we were told by Immigration Officer that we could apply from here and that was from the IO on duty. We usually got one kind of advice or another. We got the impression that we could apply while we were here". At a later stage in the interview Mr Gillespie showed the first petitioner the letter dated 27 November 1998 from the Immigration and Nationality Directorate to Mr Welsh MP (7/4 of process) and pointed out that it stated in the letter that prior entry clearance was required. In response the first petitioner said "You're right. We did call the embassy and they said that they could not see us. So when we heard that we could do it here it was much better. We lived in the country and to get to New York City wasn't an easy thing to do." To this Mr Gillespie said "Please don't think I am labouring the point but you said earlier that you were told by an I O (Immigration Officer) 3 years ago that you could apply from the UK and yet your MP was given advice on 27/11/98 that you did require an ec (entry clearance). Do you see the point I'm making?" The first petitioner replied "I'm not saying that I didn't know that but we were also told that we could do it from here. We're both under the impression that the IO has the power and discretion to apply here. Our kids were getting older. Time was flying. Janice's mother was getting older. We took advice that we liked best"

[44]     
The interview finished at 11.40 a.m. The notices of refusal giving the sole reason as lack of entry clearance were dated the same date and must therefore have been prepared shortly after the interview was completed. While it is clear from the passages referred to above that the question of knowledge of the requirement for prior entry clearance was explored with the first petitioner by Mr Gillespie, there was no indication that the arrangement entered into on 13 April by Mr White with Mr Gillespie's approval, namely, that the case would be considered in the absence of entry clearance, was being departed from. There was no suggestion that the agreement to waive Rule 265 no longer applied. I do not accept that it was clear at this stage that the petitioners had entered into a deception with respect to the question of the lack of entry clearance. In my opinion on 13 August 2000 when the decision to refuse entry was made the petitioners were entitled to hold a reasonable expectation that Rule 265 would be waived and that the application would be determined on its merits. In my opinion the attempt to justify revisiting the question of entry clearance by seeking to limit the extent of the reasonable expectation is a somewhat artificial approach. If it had been immediately apparent that the first petitioner satisfied all the requirements of Rule 263 it seems to me very unlikely that the question of entry clearance would have been revisited. I conclude that the respondent misdirected himself in taking account of the absence of entry clearance as a reason to refuse entry.

[45]     
That, of course, is not the end of the matter because Mr Lindsay submitted that even if I held that the respondent had fallen into error over the question of lack of entry clearance, there remained the other reasons which he submitted survived challenge.

[46]     
As I have held that there were reasons for refusal of leave to enter in addition to the lack of prior entry clearance, it is necessary to examine the esto case advanced by Mrs Stark. Accordingly, the next question is whether the respondent was entitled to take into account as employment the activities of the first petitioner and whether it can be demonstrated that no reasonable decision maker could have come to the conclusion that the activities of the first petitioner could be described as taking employment within the meaning of Rule 263. In this regard it is necessary at the outset to remind myself, as Mr Lindsay urged me to do, that the jurisdiction of this court is a supervisory one and that the decision of the respondent is not being considered on its merits.

[47]     
The definition of "employment" in Rule 6 is in the following terms:

"'employment', unless the contrary intention appears, includes paid and unpaid employment, self-employment and engaging in business or any other business or any professional activity".

It was not suggested by Mrs Stark that a contrary intention appeared in Rule 263. Indeed, she made no reference to the definition in Rule 6 at all. At his interview with Mrs Parker on 5 May the first petitioner freely admitted that he was engaged in business. It was only later, in the letter from the solicitors acting for the petitioners and at the second interview that the suggestion that the activities amounted to a hobby was advanced. The Immigration Officer sought advice from the London Office about the financial aspects of the application. Upon the information which was before the Immigration Officer, the respondent decided that the activities upon which the first petitioner was engaged amounted to taking employment within the meaning of Rule 263. In my opinion he was entitled to take into account the activities of the first petitioner as amounting to employment. In my opinion it cannot be said that no reasonable decision maker could have come to that conclusion. Accordingly, this Court cannot interfere with that decision.

[48]     
The next question is whether it can be demonstrated that no reasonable decision maker could have decided that the petitioners had failed to show close ties with the United Kingdom. The information before the respondent relating to close ties with the United Kingdom is to be found on a page of the bundle of documents sent by the solicitors acting for the petitioners to the Immigration Office. In addition, the subject was explored to a limited extent in the interview on 13 August 2000. The information was to the effect that the great grand parents of the first petitioner were Scottish and had emigrated to the United States in 1884. The great grandmother of the second petitioner had emigrated in the 1880s. It was asserted that the first petitioner still had relatives in the United Kingdom including several cousins in Angus. The petitioners felt a strong sense of identity with their Scottish roots. The document also referred to their involvement in the community in Montrose and the fact that they had purchased properties in Montrose. In the course of the interview on 13 August 2000 the first petitioner said that he had a cousins in Forfar and St Cyrus whose names were Charlie and Bert Milne. He thought that they were second cousins and explained that his great grandfather was a Watt from Ferryden.

[49]     
I did not find the cases referred to by Mrs Stark to be of much assistance. It is necessary for the respondent to consider the question of close ties in the round. While the reality is that the petitioners were well established in Montrose by August 2000, the difficulty in taking into account their residence there over the period from 1998 onwards was that, as Mrs Stark accepted, that residence was achieved by the device of regularly obtaining entry as visitors. Although the point is a narrow one, in all the circumstances in my opinion it cannot be said that the decision, on the information available to the Immigration Officer at the time, that the petitioners had failed to demonstrate close ties with the United Kingdom was outwith the band of reasonable decisions. In these circumstances this Court could not interfere.

[50]     
In the light of the conclusion at which I have arrived with respect to the question of what were the reasons for refusal of entry, it follows that I reject the submission that in refusing entry for the sole reason that the petitioners had no entry clearance the respondent fettered his discretion.

[51]     
Although I have come to the conclusion that the inclusion of the lack of entry clearance as a reason for refusing leave to enter was in the circumstances unlawful in that it breached a legitimate expectation created in the minds of the petitioners, I have come to the view that there were other reasons and that these cannot be said to be unlawful. Accordingly, I must refuse the application to reduce the decisions to refuse each of the petitioners leave to enter. I should add, particularly in the light of certain observations made by Mrs Stark, that my decision does not take account of the present circumstances of the petitioners. The matters which I required to address related to the decisions made in August 2000 to refuse leave to enter. Whether the petitioners could now meet the requirements of Rule 263 is not a matter that I can take into account. I shall repel the pleas-in-law for the petitioners and sustain the second, third and fourth pleas-in-law of the respondent.


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