Lord Justice Pitchford :
- This appeal by the Secretary of State from an order of Collins J, brought with the permission of Laws LJ, raises the following issues: (a) the effect of entry clearance granted by a multiple entry visitor visa, (b) whether, and in what circumstances, on arrival in the United Kingdom the holder of such a visa may be refused leave to enter under paragraph 320(5) of the Immigration Rules (HC 395), and (c) the power of an immigration officer to cancel leave to enter granted by such a visa on the ground of change of circumstances since the visa was granted. The Secretary of State is represented by Miss Cathryn McGahey. The respondent, Daniel Owusu Boahen, appears in person assisted by Mr O Ngwuocha, a member of the firm of solicitors, Carl Martin, who acted for Mr Boahen below. Mr Ngwuocha addressed us on Mr Boahen's behalf. Events have, however, overtaken this appeal. As will appear, there is nothing of substance remaining for our decision which affects Mr Boahen's status in the United Kingdom. Mr Boahen's rights of appeal from the immigration officer's decisions are no longer of concern. However, we were informed by Miss McGahey that there is some confusion remaining upon the issues of practice and principle raised by the appeal and we have accepted the invitation to attempt some clarification.
Background
- On or about 13 January 2008 Mr Boahen, a Ghanaian national, was issued with a multiple entry visa in Accra. The visa, stamped on Mr Boahen's passport, was valid from 26 January 2008 until 26 January 2010. It granted him entry clearance to the UK as a "Visitor" for a period up to 180 days in respect of any one stay, but excluded him from working or having recourse to public funds.
- Mr Boahen visited the UK on or about 26 January 2008. He remained until 4 October 2008. He therefore overstayed by a period of some nine weeks. On 4 November 2008 he returned to the United Kingdom and was interviewed on arrival by an immigration officer. Following that interview, he was issued with a notice in form IS 82A in the following terms:
"On the 13th January 2008 you were given leave to enter the UK as a "visitor" but you did not leave until 4th October 2008 which is in breach of the 180 day limit endorsed on the visa. I am thus satisfied that you have failed to observe a condition attached to your stay in the UK, the visa conditions clearly state this. Furthermore you stated that you are in the UK to take care of your uncle's children, and you will [be] given money and accommodation for this. I therefore cancel your leave to enter under paragraph 2A of the Immigration Act 1971 and paragraph 321(i) of the Immigration Rules (HC395).
Further, you do not have a visa for any other purpose and you have failed to produce a passport or other identity document endorsed with a current UK visa 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).
I therefore refuse you leave to enter the United Kingdom."
Removal directions were set and Mr Boahen was given notice of a limited out of country right of appeal.
- In a facsimile letter sent on 10 November 2008 the firm of solicitors acting for Mr Boahen, Carl Martin, challenged the immigration officer's decision. On the following day, 11 November 2008, a chief immigration officer, Mrs M E Boden, replied saying:
"I have decided to issue an amended form IS 82A which more clearly outlines the reasons for the refusal of your client."
The amended notice read as follows:
"On the 26th January 2008 [sic] in Accra you were issued with a United Kingdom entry clearance endorsed "visit" but I am satisfied that there has been such a change of circumstances in your case since the leave was granted that it should be cancelled. The change of circumstances in your case is that you obtained leave to enter as a visitor for five weeks to visit your uncle, Kwadwo Duodo Owusu, but you have stated that you are now seeking entry for six weeks for the purpose of taking care of your uncle's children and that you will be given money and accommodation for doing so, which amounts to paid employment. Mr Owusu has stated that you will stay for two to three months.
I note that you last entered the United Kingdom as a visitor on the 13th January 2008 but you did not leave until 4th October 2008, thereby overstaying by almost three months the 180 day limit endorsed on your visa. You claim that was because you did not feel well and had to consult an NHS doctor, but you have produced no evidence of this. You also claimed that your uncle could not afford to change your return ticket.
I therefore cancel your leave under paragraph 2(A)(8) of the Immigration Act 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 have failed to produce a passport or other identity document endorsed with a valid and current UK entry clearance issued for the purpose for which the entry is sought. I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395).
I therefore refuse you leave to enter the United Kingdom."
The notice proceeded to inform Mr Boahen that directions for removal would be set and that he had a limited out of country right of appeal against the decision. It was common ground before us that it was the amended notice of 11 November 2008 delivered in substitution for the notice of 4 November 2008 which would determine the issues arising in the appeal.
Judgment of Collins J
- The respondent, in proceedings for judicial review, challenged the decision to cancel his visa on the ground of change of circumstances. The essence of his claim was that the chief immigration officer did not have grounds for concluding that there had been a material change of circumstances since the visa was issued.
- At paragraph 6 of his judgment of 6 June 2009 Collins J interpreted the effect of the notice of 4 November 2008 as a refusal of leave to enter the UK on that date. Entry was refused since Mr Boahen did not have entry clearance for the purpose of working in the United Kingdom. At paragraphs 7 and 8 of his judgment, the judge concluded that the notice of 4 November 2008 was not effective to act as a cancellation of Mr Boahen's visa. He said:
"7. The question of cancellation is covered by paragraph 321A of the Immigration Rules. Paragraph 321(i) on which the officer appeared to rely in cancelling leave does not apply in respect of cancellation and so that original notice was clearly, in that respect, invalid. Section [sic] 321A, however, states that:
"The following grounds for the cancellation for a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply:
(i) there has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled
There are various other grounds, (conducive and so on) which are not material for the purpose of this case.
8. No doubt recognising that the cancellation of leave (that is the cancellation of the visa) was not permitted by the rule upon which the notice purported to rely, the immigration service, or the border agency, served a further notice on 11th November
."
- Paragraph 321(i) had no apparent connection with the reason put forward for cancellation of leave to enter. Paragraph 321(i) concerns refusal of leave to a person with valid entry clearance applying for leave to enter (on the ground of false representations or the submission of false documents to obtain entry clearance).
- The judge proceeded to examine whether Mr Boahen's visa was lawfully cancelled on 11 November under paragraph 321A(1). At paragraph 9 and following the judge said:
"9. That [the notice of 11 November] at least referred to the correct rule, so far as cancellation of the visa was concerned. The question is whether there had been, within the meaning of paragraph 321A on the grounds relied on, such a change of the circumstances since leave was given, that it should be cancelled. The Home Office has issued guidance and in relation to change of circumstances this is said:
"Paragraph 321A(1) applies where there has been a change of circumstances in a person's case since the leave was such that it should be cancelled [sic]. Examples of such a change of circumstances would include the withdrawal of an offer of employment in the case of a person with an entry clearance for "Employment", the withdrawal of sponsorship in a student case, or the permanent departure from the United Kingdom of the sponsor of a child coming for settlement".
10. What is clear from that is the fact, if it be a fact, that a particular entry is sought for a purpose which is not covered by the existing visa does not of itself mean that cancellation of the visa is justified. It is only if the material persuades the immigration officer that there is now a permanent desire, or a permanent intention, not to use the visa for proper visits, but only for visits which are going to be in breach of the terms of visit because they are going to be for employment, that then, and only then, can the revocation of the visa properly be put into effect.
11. Equally there is nothing in Rule 321A which permits cancellation purely on the basis that there has been a breach of condition on a previous visit so that the overstaying again by itself would not justify a cancellation of the visa. However, what was put to the immigration officer on his account, justified a refusal of leave to enter. Equally the previous overstaying would justify such a refusal on the basis that the officer was not satisfied that he intended to enter purely as for the term that he was permitted as a visitor. That again would be a possible justification of a refusal of leave to enter.
12. Accordingly, although I take the view that the immigration officer could have spelt out, if he had chosen to do so, a proper basis for a cancellation, he did not do so and one has to take his reason at face value. Those reasons given do not justify the cancellation of the visa. However, as I say, I have no doubt that the refusal of leave to enter was lawful."
- The judge proceeded to quash the chief immigration officer's decision cancelling Mr Boahen's visa, but declined to quash his decision to refuse Mr Boahen leave to enter. This had the apparent effect of preserving intact his leave to enter for future visits until 26 January 2010. Since, however, Mr Boahen had upon the judge's finding been refused leave to enter, he was required to leave the United Kingdom to exercise, if he wished, an out of country right of appeal against that decision. In fact, Mr Boahen was not removed. He made a claim on Article 8 grounds to the Secretary of State who again declined to grant him leave to enter. Mr Boahen exercised his in-country right of appeal against that decision. The appeal was unsuccessful and we are informed by Mr Ngwuocha that an application for reconsideration is currently before the Asylum and Immigration Tribunal. In the meantime, Mr Boahen's visa has expired so that, subject to reconsideration of his Article 8 claim, he has no entry clearance or deemed leave to enter or be in the UK. It follows that no decision of ours will affect his status.
Summary of Secretary of State's case
- It is submitted by Miss McGahey on behalf of the Secretary of State that the learned judge mistakenly understood the effect of the notice given on 11 November 2008. On a true reading of the legislation and Rules it was not possible for the immigration officer lawfully to refuse entry without having first cancelled Mr Boahen's visa. If there were no grounds for cancellation, Mr Boahen's leave to enter remained extant and he should have been permitted entry. Secondly, however, Miss McGahey submitted that the learned judge imposed a test for "change of circumstances" which had no legal justification. The cancellation was properly imposed for change of circumstances and, thus, refusal of leave to enter was justified under paragraph 320(5) of the Immigration Rules.
The Statutory Scheme
- Appendix 1 to the Immigration Rules lists Ghana among countries the citizens of which require entry clearance (a visa) before making a visit to the United Kingdom. A person who requires such a visa is called a "visa national". The effect of a multiple entry visa is provided in the Immigration (Leave to Enter and Remain) Order 2000 made under Sections 3A and 3B of the Immigration Act 1971. The relevant articles for present purposes read as follows:
"2. Subject to Article 6 (3) [which does not apply to the current circumstances], an entry clearance which complies with the requirements of Article 3 shall have effect as leave to enter the United Kingdom to the extent specified in Article 4, but subject to the conditions referred to in Article 5.
3 (1) Subject to paragraph (4) [which does not apply to the current circumstances] an entry clearance shall only have effect as leave to enter if it complies with the requirements of this article.
(2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom.
(3) The entry clearance must be endorsed with:
(a) the conditions to which it is subject; or ...
4 (1) A visit visa
during its period of validity shall have effect as leave to enter the United Kingdom on an unlimited number of occasions, in accordance with Paragraph (2).
(2) On each occasion the holder arrives in the United Kingdom, he shall be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom for the limited period beginning on the date of arrival, being:
(a) six months, if six months or more remains of the visa's period of validity: or
(b) the visa's remaining period of validity if less than six months.
(4) In this article (period of validity) means the period beginning on the day on which the entry clearance becomes effective and ending on the day on which it expires.
5 An entry clearance shall have effect subject to any conditions, being conditions of a kind that may be imposed on leave to enter under Section 3 of the Act, to which the entry clearance is subject and which are endorsed on it."
- It was not in dispute that Mr Boahen's visa complied with the requirements of Article 3 as they applied to him. Endorsed on Mr Boahen's visit visa was the following condition: "NO WORK OR RECOURSE TO PUBLIC FUNDS".
- In the context of the present appeal the provisions of Article 6 are important:
"6 (1) Where an immigration officer exercises his power to cancel leave to enter under Paragraph 2A(8) of Schedule 2 to the Act [i.e. Immigration Act 1971]
in respect of an entry clearance which has effect as leave to enter, the entry clearance shall cease to have effect.
(2) If the holder of an entry clearance
(a) ...
(b) Seeks to enter the United Kingdom for a purpose other than the purpose specified in the entry clearance an immigration officer may cancel the entry clearance.
..."
- Schedule 2 to the Immigration Act 1971 contains provisions enabling immigration officers and others to examine persons arriving in the UK, and gives a power to cancel leave to enter either deemed or previously given. By paragraph 2A of Schedule 2:
2A(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.
(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;
(b) Whether that leave was obtained as a result of false information given by him or his failure to disclose material facts;
(c) Whether there are medical grounds on which that leave should be cancelled.
(2A) Where the person's leave to enter derives by virtue of Section 3A(3) from an entry clearance he may also be examined by an immigration officer for the purpose of establishing whether the leave should be cancelled on the grounds that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance.
(3) He may also be examined by an immigration officer for the purpose of determining whether it would be conducive to the public good for that leave to be cancelled.
(4) He may also be examined by a medical inspector or by any qualified person carrying out a test or examination required by a medical inspector.
...
(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 purposes of this act and part 5 of the Nationality, Immigration of Asylum Act 2002 (Immigration and Asylum appeals) as if he had been refused leave to enter at a time when he had a current entry clearance".
It is common ground that paragraph 2A(2)(a) and 2A(2A) applied to Mr Boahen.
- I turn to the relevant Immigration Rules (HC395) at "Part 9 General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom". Parts 2 8 inclusive of the Immigration Rules set out the criteria to be met by different categories of visitors seeking leave to enter the United Kingdom. Those applying to general visitors, the category to which Mr Boahen's original application belonged, are set out in Part 2 at paragraphs 40 43. At Part 9, paragraph 320, appear the provisions relating to: "Refusal of entry clearance or leave to enter the United Kingdom". Paragraph 320(5) reads:
"320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused.
....
(5) Failure in the case of a visa national, to produce to the immigration officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;
...."
Each of sub-paragraphs 320(1) to 7(C ), subject to paragraph 321, set out circumstances which must result, under the Rules, in the refusal of leave to enter. They include, for example, that entry is sought for a purpose not covered by the Rules; the fact that the person seeking entry is the subject of a deportation order; a failure to produce a valid passport or identity document; when false representations have been made or false documents submitted; or, subject to limited exceptions, where the visitor has previously breached the UK's immigration laws. Paragraph 320(8) (20) sets out circumstances in which a visitor, subject to paragraph 321, should normally be refused leave to enter. They include: a failure by the visitor to furnish relevant information; a refusal to undergo medical examination; and where refusal would appear to be conducive to the public good.
- Paragraph 321 is headed "Refusal of leave to enter in relation to a person in possession of an entry clearance". Paragraph 321 provides:-
"321. A person seeking leave to enter the United Kingdom who holds an entry clearance which was duly issued to him and is still current may be refused leave to enter only where the immigration officer is satisfied that:
i) false representations were made or false documents or information were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application for entry clearance; or
ii) a change of circumstances since it was issued has removed the basis of the holder's claim to admission, except where the change of circumstances amounts solely to the person becoming over age for entry in one of the categories contained in paragraphs 296 316 of these rules since the issue of the entry clearance; or
iii) refusal is justified on grounds of restricted returnability; on medical grounds; on grounds of criminal record; because the person seeking leave to entry is the subject of a deportation order or because exclusion would be conducive to the public good".
- Paragraph 321(A) of the Rules is headed "Grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the United Kingdom". Section 321(A) reads as follows:-
"321(A). The following grounds for the cancellation of a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside the United Kingdom apply:
1. There has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled: or
2. False representations were made, or false documents were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application to leave; or
3. Save in relation to a person settled in the United Kingdom or where the immigration officer or the Secretary of State is satisfied that there are strong compassionate reasons justifying admission, where it is apparent that, for medical reasons, it is undesirable to admit that person to the United Kingdom; or
4. Where the Secretary of State has personally directed that the exclusion of that person from the United Kingdom is conducive to the public good; or
5. Where from information available to the immigration officer or the Secretary of State, it seems right to cancel leave on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of that person it is undesirable for him to have leave to enter the United Kingdom; or
6. Where that person is outside the United Kingdom, failure by that person to supply any information, documents, copy documents, or medical report requested by an immigration officer or the Secretary of State. "
- A visitor may, under section 82 Nationality, Immigration and Asylum Act 2002, appeal against an immigration decision, which includes "refusal of leave to enter" and "refusal of entry clearance". As observed at paragraph 14 above, cancellation of leave to enter under paragraph 2A of Schedule 2 to the 1971 Act is to be treated "as if...[the visitor] had been refused leave to enter at a time when he had current entry clearance". Section 92(1) provides that an appeal may be exercised while the visitor is in the United Kingdom only if the "immigration decision" falls within certain paragraphs of section 82(2) or if:
"(3) ...
(a) at the time of the refusal [of leave to enter] the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant has entry clearance."
Section 92(1) (in country right of appeal) would, therefore, apply to a visitor refused leave to enter under paragraph 321 and 321A of the Rules. Section 92 continues:
"(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 2A(9) of Schedule 2 to the Immigration Act 1971 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."
Section 92(1) (in country right of appeal) would not, therefore, apply to a visitor whose leave to enter has been cancelled under paragraph 2A(9) because he arrived for a purpose different from that specified in his entry clearance. He would be limited to an out of country right of appeal. Section 92 continues:
"(3C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance."
A person seeking leave to enter and refused leave under paragraph 320(5) will enjoy only an out of country right of appeal. If paragraph 320(5) applies to a person who has entry clearance, but is refused leave to enter on arrival for change of purpose (but see paragraphs 28-31 below), he also enjoys only an out of country right of appeal.
Discussion and Conclusion
Interpretation of Rule 320(5)
- Formerly, leave to enter would be granted or refused at port on arrival by the visitor to the United Kingdom. Since the Immigration (Leave to Enter and Remain) Order 2000 was made under Section 3A of the Immigration Act 1971 a visitor may (and, if he is a visa national, must) be given or refused leave to enter before arrival in the United Kingdom. The grant of a visa giving entry clearance does not automatically grant leave to enter; whether deemed leave to enter is given depends upon whether the visa complies with article 3 (at paragraph 11 above).
- Miss McGahey correctly observes that upon the arrival of a person holding a current visitor's visa the procedure to be followed by an immigration officer and the powers available to him are to be discerned only by an understanding of three sources of legislative material:
i) The 2000 Order;
ii) Schedule 2 to the 1971 Act; and
iii) Paragraphs 320 321A of the Immigration Rules.
- Nowhere in the statutory material is the immigration officer informed whether he has the discretion to refuse entry to a visa holder seeking to enter for a purpose not authorised by the visa while at the same time preserving intact leave to enter for future visits. Ms McGahey submits that the effect of the legislative material is to require either admission of the visitor or cancellation of his deemed leave to enter under paragraph 2A(2) or (2A) and (8) of Schedule 2. In the event, but only in the event, of cancellation, leave to enter for the new, and so far unauthorised, purpose will be refused under paragraph 320(5) since there will then be no "valid and current entry clearance issued for the purpose for which entry is sought". On this issue Mr Ngwuocha referred us to his skeleton argument in which he submitted, "...the Appellant's decision to refuse entry under sub-paragraph (5) of paragraph 320 was essentially made on the basis that the Respondent's existing leave had been cancelled". If the cancellation was unlawful, it was Mr Ngwuocha's submission that the refusal of leave could not stand either.
- Article 4 of the Order of 2000 provides that a qualifying visit visa shall operate, during its period of validity, as advance leave to enter the United Kingdom for limited periods. I agree that neither the Order nor Schedule 2 provides any circumstances in which, notwithstanding the advance leave to enter, entry can be refused at port. The Order provides, in the present context: (1) by Article 6(2)(b), that entry clearance may by cancelled in the event that the visitor seeks to enter the United Kingdom for a purpose other than the purpose specified in the visa; and (2) by Article 6(1) that, should the immigration officer exercise his power under Paragraph 2A(8) of Schedule 2 to the 1971 Act to cancel the leave to enter, his decision will have the result that the entry clearance will cease to have effect (in other words, that the visa will be cancelled).
- Paragraph 2A(2), (3), and (4) of Schedule 2, which apply to a visitor with advance leave to enter, provide the immigration officer with the power, notwithstanding the advance leave, to examine the visitor for the purpose of ascertaining whether there has been a change of circumstances such that leave to enter should be cancelled; whether leave was obtained as a result of false information or failure to disclose material facts; whether there are medical grounds on which leave should be cancelled; whether it would be conducive to the public good for leave to be cancelled; or, if he is a medical inspector, to carry out a medical inspection The immigration officer's power to cancel leave on these grounds or medical reasons is given by paragraph 2A(8) of the Schedule, reproduced in paragraph 321A of the Rules.
- Paragraph 2A(2A) also provides the immigration officer with the power to examine a visitor with advance leave to enter for the purpose of ascertaining whether he has arrived for a purpose other than that specified in the visa. Paragraph 2A(8) again provides the power to cancel leave to enter. There is, on the face of it, no reproduction of the paragraph 2A(2A) grounds for cancellation in the Immigration Rules. Paragraph 2A does not give or recognise a power to refuse leave to enter.
- Miss McGahey drew our attention to the terms of paragraph 2A(9) of Schedule 2 to demonstrate that the use of the words "cancel", "should be cancelled" and "cancellation" was deliberate and to be distinguished from refusal of leave to enter. Where a person's leave is cancelled under paragraph 2A(8) the appeal provisions of Part 5 of the Nationality, Immigration and Asylum Act 2002 were to be applied "as if" the visitor had been refused leave to enter at a time when he had a current entry clearance. Paragraph 2A(9) was a necessary provision because the qualifying decision under sections 82 and 92 of the 2002 Act is a refusal of leave to enter and not a cancellation. Had the draftsman in mind to provide an immigration officer with a power to refuse leave to a person who already held deemed leave to enter, Miss McGahey submits that either the Order or Schedule 2 would have expressly provided it. The intention behind the legislation was to provide only for cancellation of the deemed leave to enter.
- Read in isolation, however, Miss McGahey concedes that paragraph 320(5) is apt to apply equally to a visitor whose entry clearance and leave to enter subsist as it applies to a visitor whose visa has, immediately before, been cancelled by the immigration officer under paragraph 2A(8) and/or paragraph 321A. A visitor who arrives in the UK for a purpose not authorised by his visa will not be able to produce a passport or other identity document "with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought". This construction of paragraph 320(5) is, it seems to me, the justification for Collins J's decision to decline to quash the immigration officer's refusal of entry under paragraph 320(5) while leaving intact the advance leave to enter for authorised purposes on future occasions. I recognise the utility of Collins J's interpretation. The immigration officer would be able to make a judgement after examination whether, notwithstanding the visitor's disqualification for entry on the current occasion, the visa should nevertheless remain in place, giving deemed leave to enter for future, authorised visits. Upon the interpretation to which we are invited on behalf of the Secretary of State, the visitor must either be admitted or his leave to enter cancelled; in the latter case he must return to his country of origin, lose the benefit of the advance entry clearance, and re-apply. If and when he re-applies for a visa, he will need to overcome a suspicion, perhaps unjustified, that he sought to circumvent the Immigration Rules.
- The question of construction we need to resolve, therefore, is whether, notwithstanding the absence of an express power to refuse leave in the Order and Schedule 2, paragraph 320(5) is intended to apply to those who have existing leave to enter for a purpose different from the purpose for which they have arrived in the UK. There are, in general, three distinct presentations which, it seems to me, the Immigration Rules envisage. The first is an application by a visitor, either in his country of origin, or at port on arrival, for entry clearance or leave to enter. Faced with such an application, the entry clearance officer or immigration officer will need to apply the rules contained in Parts 2-8 which govern the visitor's stated purpose, and paragraph 320. The second presentation is the application of a person, who holds current entry clearance which does not take effect as leave to enter under Article 3 of the 2000 order, for leave to enter. In that event (but see paragraph 30 below), entry may be refused on one of the three grounds provided by paragraph 321 of the Immigration Rules to which paragraph 320 is expressly subject. The third presentation is the arrival in the UK of the holder of a visa giving him leave to enter or remain. In those circumstances paragraph 321A applies and leave to enter or remain may be cancelled upon one or more of the six grounds I have identified at paragraph 17 above.
- The power given by paragraph 2A(2) and (8) of Schedule 2 to the 1971 Act is reproduced in paragraph 321 of the Immigration Rules. Consistency would have required the power given by paragraph 2A(2A) and (8) also to be reflected in Immigration Rules but, strangely, it is not. The question arises whether the draftsman intended paragraph 320(5) to represent that power. In my opinion that cannot have been the draftsman's intention because paragraph 320 of the Rules applies only to refusal of leave to enter and paragraph 2A(2A) and (8) applies only to cancellation. There can, however, be no doubt that despite its absence from the Immigration Rules the latter power exists under the terms of the Order and the Schedule.
- The next question is whether, notwithstanding that paragraph 320(5) cannot have been the draftsman's intended reproduction of the paragraph 2A(2A) power, it gives a free-standing power to refuse leave to enter to a person with deemed leave to enter. The opening words of Rule 320 ("the following grounds for the refusal of entry clearance or leave to enter apply") make clear that it applies to a person who is seeking entry clearance or leave to enter. On arrival Mr Boahen was seeking neither entry clearance nor leave to enter. He was relying on his existing entry clearance with its deemed leave to enter. The power of the immigration officer to examine him was confined (under paragraph 2A(2) and (2A)) to the purpose of ascertaining whether there were grounds for cancellation of his leave to enter. It was only if Mr Boahen's existing leave to enter was cancelled that he could properly be regarded as a person who was seeking leave to enter for a purpose other than that authorised by his visa.
- If this construction of paragraph 320 is right the question arises as to what immigration decision is envisaged by section 92(3C) of the 2002 Act. Subsection (3C), providing for an out of country right of appeal, "applies to a refusal of leave to enter which specifies that the grounds for refusal are that leave is sought for a purpose other than that specified in the entry clearance". Parliament clearly recognised, when it enacted the amendment to section 92, (adding sub-paragraphs (3) and (3A)-(3D) by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004), an immigration officer's power to refuse entry, apart from the deemed refusal arising from cancellation under paragraph 2A(9), to a person who has entry clearance for a purpose different from that specified in the entry clearance. Paragraph 321, to which paragraph 320 is expressly subject, relates to "a person seeking leave to enter...who holds an entry clearance" and paragraph 321 provides only three grounds for refusal of leave to enter which do not include that "leave is sought for a purpose other than that specified in the entry clearance". If, as section 92(3C) plainly envisages, leave to enter may be refused on the simple ground that the entry clearance does not permit it, it seems to me that can only be because it is a refusal under paragraph 320(5). This would require paragraph 321 to be read as applying to a person who holds an entry clearance for the purpose for which he now seeks to be admitted to the UK. Thus, in the case of a person who holds a valid entry clearance and seeks to leave to enter, the first question for the immigration officer is whether he is seeking leave to enter for the purpose authorised by the entry clearance. If he is seeking leave to enter for a purpose not authorised by his entry clearance, leave to enter must be refused under paragraph 320(5); if he is seeking leave to enter for the authorised purpose, leave to enter may only be refused on the grounds provided by paragraph 321. In my judgment, this construction of the interaction of paragraphs 320 and 321 of the Rules makes sound sense, accommodating as it does otherwise contradictory provisions under the separate statutory sources.
- If paragraph 320(5) is to be read as applying to a person who has entry clearance and is seeking leave to enter, the question remains whether it applies to a person in the same position as Mr Boahen, a person who has deemed leave to enter but who has arrived for a purpose different from that specified in his entry clearance. In my view, it does not because, as I have observed at paragraph 29 above, paragraph 320 applies only to persons seeking entry clearance or leave to enter. Mr Boahen was seeking neither. In his case, the power provided was not refusal but cancellation of the existing leave to enter under paragraph 2A(2A) and (8) of Schedule 2.
- In my opinion the submissions made by Miss McGahey are correct. When Mr Boahen arrived at port on 4 November 2008 the immigration officer's power, upon realising that Mr Boahen's purpose for entering was different from the purpose specified in his entry clearance, was confined to cancellation of his leave to enter, either on the ground specified in paragraph 2A(2A) and (8) (change of purpose) or on the ground specified in paragraph 2A(2)(i) and (8) of Schedule 2 and under paragraph 321A(1) of the Rules (change of circumstances). Only then did the power to refuse leave to enter under paragraph 320(5) come into play. It follows that the immigration officer's refusal of leave to enter under paragraph 320(5) depended for its validity upon the lawfulness of the cancellation under paragraph 321A(1) of the Rules. I regret that I disagree with Collins J's decision to the contrary.
- Included in our authorities bundle is a section from the current Border Force Operations Manual entitled "Cancellation of entry clearance that has effect as leave to enter (Paragraph 321A of HC 395)". Under paragraph 1, "Introduction", the authors set out in summary the power of the immigration officer to cancel leave to enter on one of the grounds provided by paragraph 321A (paragraph 17 above) and continues:
"A person can also have their leave cancelled if they seek to entry [sic] for a purpose not specified by their entry clearance; although this refusal would fall under paragraph 320(5) and not paragraph 321A of HC 395." [emphasis added]
When dealing with "7. Change of Purpose" the Manual proceeds:
"Although refusing leave to enter to a passenger with a current entry clearance (which has the effect of leave to enter) based on a change of purpose is covered by paragraph 320(5) and not paragraph 321A, it is worth mentioning here. It is important to illustrate the difference between refusal on the grounds of change of purpose and refusal on the grounds of change of circumstances.
Where a person with a valid entry clearance seeks to enter the UK, leave can be cancelled on the basis where:
- The passenger admits that leave is being sought for a different purpose than specified on his entry clearance, e.g. a person with a visit visa seeking entry to follow a course of study;
- There is clear evidence that the passenger's purpose of stay is different to that stated in his entry clearance, as with the above example, any documents found in the passenger's belongings about his course of study. Or an employer's letter with someone who was actually seeking entry to work."
In my judgement this advice is wrong, for the following reasons:
(1) The summary incorrectly treats refusal synonymously with cancellation. Cancellation is to be treated as refusal of entry only for the purposes of appeal under section 92 of the 2002 Act. They are not otherwise synonymous terms. Paragraph 320(5) does not deal with cancellation; it deals with refusal of leave to enter. Leave to enter can be cancelled for change of purpose, but the power is given under paragraph 2A(2A) and (8) of Schedule 2 to the 1971 Act and not paragraph 320(5). Paragraph 320(5) applies only to a visitor who is seeking entry clearance or leave to enter, not to a person who already has leave to enter but who has arrived for a purpose different from the purpose specified in his entry clearance.
(2) Paragraph 7 of the advice assumes a power to refuse leave to enter on the ground of change of circumstances. Paragraph 321A of the Rules and paragraph 2A(2) and (8) of Schedule 2 do not give a power to refuse leave to enter but a power to cancel an existing leave to enter.
(3) The advice is, however, correct to distinguish between the power to cancel under paragraph 321A on six grounds, including change of circumstances, and the power to cancel for change of purpose under paragraph 2A(2A).
- Faced with Mr Boahen's presentation on arrival, the first question for the immigration officer, on examination of Mr Boahen, was whether he had arrived for the purpose authorised by his leave. If he concluded that Mr Boahen had arrived for a different purpose, the immigration officer had the following decisions to make:
(1) Whether Mr Boahen's deemed leave to enter as a visitor under the visa should be cancelled either under paragraph 2A(2A) or (2A(2)(a) (and/or paragraph 321A(1) of the Rules) and (8) of Schedule 2; and, if so
(2) Whether Mr Boahen, as a visa national, should be refused leave to enter under paragraph 320(5) on the ground that he was unable to produce a passport containing a visa which authorised his entry for the purpose of work.
- The chief immigration officer did not exercise her power under paragraph 2A(2A) and (8) to cancel Mr Boahen's leave to enter for change of purpose, but cancelled his leave to enter on the ground of a change of circumstances under paragraph 321A(1) of the Rules. The question for the judge was whether the cancellation was lawful on public law grounds.
Change of Circumstances
- Collins J examined the then current Home Office guidance to its officers ("Immigration Directorates' Instructions", Chapter 9 Section 3A, paragraph 3), since replaced, upon the issue of change of circumstances under Paragraph 321A(1), and noted, in paragraph 9 of his judgment, three examples of relevant change. From those examples he extracted a principle as to the permanence of the change contemplated by the rule. He concluded that if the change was comprised in an alteration of purpose of visits in the mind of the visitor, it would be a change which qualified under paragraph 321A(1) only if "the material persuades the immigration officer that there is now a permanent desire, or permanent intention, not to use the visit visa for proper visits, but only for visits which are going to be in breach of the terms of visit..." It is submitted on behalf of the Secretary of State that there is no legal justification for the imposition of such a test. Mr Ngwuocha seeks to support the judge's reasoning on the ground that there is no reason in principle why future authorised visits should be precluded during the remainder of the period of validity of the visa, unless the holder of the visa had evinced such an intention. It was only if, by analogy with the examples given in the guidance, the intended purpose of the visa had been undermined altogether that there would be a material change of circumstances.
- The context of the illustrations in the guidance is important. What is envisaged is that, while the visa holder's intention may remain to enter for the authorised purpose, the factual basis upon which the visa purpose was founded has been undermined. Accordingly, leave to enter to take up employment may have been undermined by withdrawal of the offer of employment; leave to enter for study may have been undermined by withdrawal of sponsorship; or leave to enter as a child for settlement may have been undermined by the permanent departure of the child's sponsor from the UK. In other words, had the entry clearance officer been aware of these eventualities, he would not have issued the visa for the purpose he did, however genuine the application was. There is, in my opinion, no underlying premise to these examples that the change of circumstances must be permanent, nor is there, in any event, a true comparison to be made between the examples given and Mr Boahen's case, in which the visa holder had, on the immigration officer's finding, evinced an intention to visit for purposes other than that authorised. The only legitimate analogy lies, in my view, in the judgement of the probable effect of the circumstances as they have turned out to be upon the mind of an entry clearance officer considering the original application. It is legitimate to ask whether, if the entry clearance officer had known that the applicant would use the visa for purposes other than those authorised, whether mistakenly or deliberately, he would have issued it. In the light of the development with which the chief immigration officer was faced in Mr Boahen's case, the question she had to consider was whether the entry clearance should continue, or the visa holder should be required to make a further application. Consideration of cancellation on the ground of change of circumstances required an assessment from the immigration officer of all the circumstances including, for example, whether there remained a continuing legitimate purpose for the visa holder's visits with which the visa holder could and should be entrusted for the remainder of the period of validity. The purpose of the power of cancellation is to ensure proper immigration control, and the use of a visa by a visa national for a visit whose purpose is unauthorised is, on the face of it, a serious matter.
- Although there is no doubt that a change of purpose can constitute a material change of circumstances, the present context for the exercise of the power of cancellation is somewhat academic since an immigration officer has the power to cancel the visa for change of purpose whether or not that change amounted to a change of circumstances as contemplated by paragraph 321A(1) of the Rules. The importance of identifying the true ground for the decision to cancel lies in the fact that an immigration officer must be taken to have justified the exercise of a power of cancellation on the grounds stated in the IS 82A notice. If the stated ground was unsustainable then the decision was unlawful despite the existence of an alternative ground on which the same decision could have been reached.
- With respect to Collins J's judgment, it is not possible, in my opinion, to derive from the examples given in the guidance any underlying principle governing the expression "change of circumstances" in the present factual context. I do not, in any event, regard the examples given in guidance to officers as a basis for construction of the statutory provisions. With respect to Collins J's vast experience in this field, I disagree with his analysis of the test to be applied by the immigration officer, whose effect is to impose a standard which I consider impracticable and probably impossible to reach. The immigration officer was faced with a visa holder who intended to enter in breach of his stated purpose, whether knowingly or not. The immigration officer was required to make a judgment under paragraph 2A(2) of Schedule 2 and paragraph 321A(1) whether that fact was such a change of circumstances, that in the interests of proper immigration control, his leave should be cancelled. It cannot, in my judgment, have been the purpose of the legislation to require the immigration officer to be satisfied that the intention of the visa holder was never again during the period of validity to make a visit for the visa purpose. In my view, the margin for judgement by the immigration officer is more generous than this and embraces considerations such as those I have described.
- The immigration officer was confronted by a previous over-stayer the purpose of whose visit was said to be to stay with his uncle and his family. The uncle did not agree with Mr Boahen over the length of his intended stay, and the relationship between them appeared to have changed to one of employer and employee, albeit in a family context. It does not seem to me that the decision, that there had been such a change of circumstances that leave should be cancelled under paragraph 321A(1), was flawed on public law grounds.
- I would allow this appeal but, in view of the passage of time and events, make no further order.
Lord Justice Thomas
- I agree. Pitchford LJ has set out with admirable clarity a workable interpretation of these very complicated provisions. However, the complexity of the task that he has undertaken demonstrates, if further demonstration was needed, the urgent need to simplify and write in plain English the relevant regulations and other provisions. It cannot be right that officials of the UK Border Agency are required to try and understand and make sense of provisions that are so arcane and poorly drafted.
Lord Justice Mummery
- I agree.
