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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134 (15 December 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/2134.html Cite as: [2018] WLR 2591, [2018] 1 WLR 2591, [2017] WLR(D) 841, [2018] INLR 127, [2017] EWCA Civ 2134, [2018] Imm AR 660 |
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ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Rimington
IA/36817/2013
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE SINGH
____________________
Muhammad Haseeb Anwar |
Appellant |
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- v - |
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Secretary of State for the Home Department |
Respondent |
____________________
Mayfair Solicitors) for the Appellant
Tom Hickman (instructed by Government Legal Department) for the Respondent
Hearing date: 23 November 2017
____________________
Crown Copyright ©
Lord Justice Singh :
Introduction
(1) whether section 3(1)(c)(ia) of the Immigration Act 1971 ("the 1971 Act"), on its proper construction, permits the Secretary of State to impose a condition on a person's leave to remain in the UK requiring him to study only at a particular educational institution;
(2) whether a person who is granted leave to remain in the UK as a Tier 4 (General) Student under para. 245ZY of the Immigration Rules (HC 395), by reference to an educational institution identified on the Confirmation of Acceptance of Studies Checking Service, is automatically subject to a requirement, imposed as a condition of his leave, that he may not study at another institution.
Factual Background
"40. However on what I might call the most substantial issue before me, the position is very much less favourable for the appellant.
41. The Appellant somewhat strangely told me that he studied for three days a week at the college in respect of which he was provided with a CAS and for two days a week at another college altogether following an entirely different course; he may have had the best intentions in seeking some kind of double qualification but I am afraid that this process failed utterly to produce the right result.
42. It is certainly suggested in the guidance that a supplementary course may be taken to the main one (evening studies are given as an example) but I do not consider that studying for three days in one college and two days in another can possibly lead to the latter being described as 'supplementary' only, it is a virtually equal division of time. In addition, the guidance makes clear that the supplementary course should not interfere with the studies at the primary college and here the appellant in this case falls down completely; he failed his studies in his main college to the extent of not emerging with any qualification at all and somewhat bizarrely has only the qualification from his suggested supplementary college. All of this shows very clearly that his studies at the supplementary college for two days must by definition have significantly interfered with his results at his primary college. He clearly needs to be spending all his time studying his main course to succeed.
43. The appellant in my view clearly breached the terms of his visa and the refusal under paragraph 322 (3) with reference to the relevant paragraph in the rules I have quoted above, is clearly justified.
44. Both in the skeleton argument and before me, Mr Rahman used every argument possible to try to get round this fundamental difficulty; he referred to the fact that the condition in question was not endorsed on the appellant's passport and even suggested that the condition did not attach to the appellant's leave 'automatically' and that it was somehow a discretionary matter or a matter in which the appellant should have been approached to offer an explanation. I am afraid I do not accept any of these propositions; the rule is clear and has to be complied with."
"At the hearing Mr Malik concentrated on grounds three and four of the application for permission and requested to reserve his position in relation to Section 50. He accepted that I would follow the decision in Bhimani (Student Switching Institution: Requirements) [2014] UKUT 00516 (IAC). In effect where a student chooses to study at another institution holding a different sponsor licence number from that of the institution where he or she was granted leave to remain to study, he is required to make a fresh application for leave to remain. Judge Allen accepted that it was clear from Section 3(1)(c) of the Immigration Act 1971 that a person given limited leave to enter or remain in the UK may be given that leave subject to conditions which include the provisions inserted by Section 50 of the Borders, Citizenship and Immigration Act 2009, that is a condition restricting his studies in the UK and in effect that entry clearance in the case of a Tier 4 (General) Student will be granted subject to conditions including the requirement that the student is not allowed to study except at the institution which the Confirmation of Acceptance for Studies checking records service records as their sponsor."
Is the Present Appeal Academic?
"For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision by the Upper Tribunal other than an excluded decision."
"I am satisfied that this Court does have jurisdiction to entertain the appeal, and that if the appeal were to succeed it would significantly affect any future decision which the Secretary of State were to make in relation to the appellant's application for an extension of leave to remain."
Material legislative and other provisions
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen – …
(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;
(ia) a condition restricting his studies in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; … " (Emphasis added)
"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) … shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected; except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument." (Emphasis added)
"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an Immigration Officer, if –
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; …
(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."
"(3) failure to comply with any conditions attached to the grant of leave to enter or remain".
"Leave to remain will be granted subject to the following conditions:
(i) no recourse to public funds,
…
(iii) no employment except: [more specific terms are then set out];
(iv) no study except:
(1) study at the institution that the Confirmation of Acceptance for Studies checking service records as the migrant's Sponsor or where the migrant was awarded points for a visa letter, study at the institution which issued that visa letter unless the migrant is studying at an institution which is a partner institution of the migrant's Sponsor;
…
(3) supplementary study;
…"
The First Issue
"What are the legal consequences if a foreign student who has obtained leave to enter or remain in order to follow a named course embarks on a different course or fails the course examinations?"
"… In our judgment, the grant of clearance to enter the United Kingdom as a student does not confine the entrant to a single course of study and failing an examination does not always negate satisfactory progress."
"The importance of this empowering provision is that, with one arguable exception, it gives the Home Secretary no authority to impose conditions on a student entrant as to the course he or she is to follow. The arguable exception is in the words 'or occupation' in section 3(1)(c)(i). Their evident purpose is to restrict what businesses a self-employed entrant may conduct, but Ian Hutton for the Home Secretary seeks to keep open the submission that it is wide enough to include a student entrant's course of study. For reasons to which we turn next we do not have to decide this point; we confine ourselves to saying that its apparent meaning is the one reflected in rule 57(vii), which requires the intending student to satisfy the ECO that, within certain limits, he 'does not intend to engage in business or take employment' while here."
"Before we turn in detail to our reasons, it is relevant to recall that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world's principal language of commerce, law and science; it furnishes a source of revenue (at rates which, by virtue of an exemption from the Race Relations Act 1976. substantially exceed those paid by home students) of frequently critical budgetary importance to the United Kingdom's universities and colleges as well as to many independent schools. We therefore find it unsurprising that the legislation and rules, correctly construed, do not place arbitrary or unnecessary restrictions on what foreign students can study here. It does not require evidence to remind us that it is not uncommon for a student to realise that he or she has made an unwise choice, or perhaps is being poorly taught, and to change courses or institutions with beneficial results. A rule preventing students from making such a change might well be arbitrary or unnecessary in the absence of case-specific reasons."
The Second Issue
"In my view, it is the 1971 Act itself which is the source of the Secretary of State's power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain … The language of these provisions, especially section 3(1)(b)(c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even where leave would not be given under the immigration rules."
"… Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power 'shall be exercised by notice in writing given to the person affected'. The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised. Mr Blundell's submission [for the Secretary of State] invites us to read section 4(1) as though it said: 'and notice in writing shall be given to the person concerned of the exercise of the power.'"
It is clear that the Court rejected that submission which had been made on behalf of the Secretary of State. Section 4(1) of the 1971 Act does not merely require written notice of the exercise of the relevant power to be given; rather it is only by written notice that the power can be exercised at all. In the present context that means that a condition which is said to be attached to the grant of leave to remain can only be imposed by way of notice in writing given to the person affected.
"This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are over-ridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. …"
"Until the decision in ex p. Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law. … Where decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication."
"If this analysis is correct, it is plain that Parliament has not expressly or by necessary implication legislated to the contrary effect. The decision in question involves a fundamental right. It is in effect one involving a binding determination as to status. It is of importance to the individual to be informed of it so that he or she can decide what to do. Moreover, neither cost nor administrative convenience can in such a case conceivably justify a different approach. … Given this context Parliament has not in specific and unmistakable terms legislated to displace the applicable constitutional principles."
"Section 3 of the 1971 Act clearly distinguishes the discretionary power to grant clearance and impose conditions under section 3(1) and the provision for rules to be made under section 3(2) that prescribe, among other things, 'the conditions to be attached in different circumstances'. Thus under the rules made pursuant to section 3(2) of the 1971 Act the conditions to be attached in the case of the Tier 4 Student clearance are specified, that is that entry clearance will be granted subject to the following conditions which are then set out, including the no study condition. In my judgment, that does not require any further administrative action to impose the condition on the grant of clearance in accordance with the rules, subject to any further regulatory requirement such as is found in the 2000 Order."
"22. It is clear from s.3(1)(c) of the Immigration Act 1971 that a person given limited leave to enter or remain in the United Kingdom may be given that leave subject to conditions which include the provision inserted by s.50 of the Borders, Citizenship and Immigration Act 2009: a condition restricting his studies in the United Kingdom.
23. It is important also to bear in mind the terms of s.3(2) which, as set out above, establishes that the Secretary of State shall from time to time lay before Parliament statements of the rules or changes in the rules laid down by her as to the practice to be followed in the administration of the Act for, inter alia, regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances.
24. It is in this light that paragraph 245ZW(c)(iv)(1) has to be seen. The effect of this provision is that entry clearance in the case of a Tier 4 (General) Student will be granted subject to conditions including the requirement that the student is not allowed to study except at the institution which the Confirmation of Acceptance for Studies Checking Service records as their sponsor. That is a clear example of a provision made in accordance of s.3(2) of the 1971 Act.
25. As regards s.4(1) of the Act, the effect of this is to require that powers under the Act giving or refusing leave to enter the United Kingdom are to be exercised by notice in writing given to the person. But the subsection goes on to make it clear that the requirement of notice in writing operates 'unless otherwise allowed by or under this Act', which in my view entails inter alia, that s.4 must be read in conjunction with s.3(2), itself enabling provisions such as paragraph 245ZW(c)(iv)(1).
26. As regards the Immigration (Leave to Enter and Remain) Order 2000, Mr Malik drew my attention to the specific provision set out at paragraph 3(3)(a) which required the entry clearance to be endorsed with the conditions to which it is subject.
27. However I interpret the biometric and residence permit, a copy which is at Annex D to the explanatory statement, as doing precisely that. As Mr Malik accepted, the reference number is the CAS number of Access College, London, and I think it is not straining a proper interpretation of the requirements of paragraph 3(3)(a) of the Order to read this as an endorsement of a condition to which the leave is subject, i.e. study at the college in respect of which that CAS is the reference."
(a) A leaflet sent to the Appellant on 11 February 2011 (detailing the conditions attached to his leave to remain), said to have been sent with "the grant letter" and all his original documents relating to the 2011 application for leave to remain.
(b) The Respondent's electronic record notes demonstrating that the Appellant's passport and all original supporting documents (including the conditions letter noted in (a) above) were sent to him on 11 February 2011 by recorded delivery. As has been confirmed later, in a letter dated 27 November 2017, that should have been a reference to a letter dated 17 February 2011. That was said to be "the grant letter."
"The Biometric Residence Permit is a residence permit which hold your biographic and biometric information and shows your immigration status and entitlements while you remain in the United Kingdom. The permit replaces the vignette (or sticker) and ink stamps previously placed in the passports of those granted permission to remain in the United Kingdom. …"
"Having been granted leave to remain as a Tier 4 (General) Student Migrant, you are restricted to studying at the sponsor institution which issued your confirmation of acceptance for studies and supplementary study. If you wish to change your place of study to a different sponsor institution, you should make a fresh application for leave to remain using the appropriate application form and paying the appropriate fee, no more than 3 months prior to the start date of your new course of study."
Conclusion
Peter Jackson LJ :