[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mutasa, Re [2002] ScotCS 303 (29 November 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/303.html Cite as: [2002] ScotCS 303

[New search] [Help]

(1) The petitioner is a native of Zimbabwe. He made an application for leave to enter the United Kingdom as a prospective student. On 29 April 2002 he was interviewed in connection with his application. On the same date, an immigration officer issued a Notice of Refusal of Leave to Enter in the following terms:

On 30 April the respondent made directions for the removal of the petitioner to Zimbabwe. The removal directions have been suspended pending resolution of the present petition.

(2) In these proceedings the petitioner seeks a declarator that the decision of the immigration officer is unreasonable and reduction of the said decision.

(3) The requirements for leave to enter the United Kingdom as a prospective student are set out in Rule 82 of the Immigration Rules (HC395). Rule 82 provides:

1. can demonstrate a genuine and realistic intention of undertaking, within six months of his date of entry, a course of study which would meet the requirements for an extension of stay as a student set out in paragraphs 60 or 67; and

1. is able without working or recourse to public funds to meet the cost of his intended course and accommodation and the maintenance of himself and any dependents while making arrangements for study and during the course of his studies."

Rule 83 provided that a person seeking leave to enter the United Kingdom as a prospective student may be admitted for a period not exceeding six months with a condition prohibiting employment provided the immigration officer is satisfied that each of the requirements of paragraph 82 is met. In terms of Rule 84 leave to enter as a prospective student is to be refused if the immigration officer is not satisfied that each of the requirements of paragraph 82 is met.

(4) It is clear from the terms of the Notice of Refusal of Leave to Enter that the immigration officer refused the petitioner's application on the ground that he was not satisfied as to the matters specified in both paras (i) and (ii) of Rule 82.

(5) The elucidation of the immigration officer's decision is to be found in his notes of the interviews he conducted with the petitioner and the petitioner's aunt, and the inquiries he made at Telford College. In his summary, he discloses that he had concerns about three matters: (1) the fact that the petitioner had no idea of the cost, length or start date of the course; (2) that the petitioner had made no specific inquiries regarding his job prospects should he obtain qualifications as intended at Telford College; and (3) there were contradictions between the petitioner's statement and that of his sponsor relating both to the petitioner's wish to study abroad and his father's job in Zimbabwe.

(a) The petitioner:

(6) Mr Devlin for the petitioner submitted that the decision to refuse the application was unreasonable. It was accepted that the test to be applied was whether the decision was one that no immigration officer, properly directing himself, could reasonably have arrived at, but in arriving at a decision on this matter, the court, it was argued, should apply a greater intensity of review because of the nature of the subject matter. Reference was made in this connection to R v Secretary of State for the Home Department ex parte Khawaja [1984] 1A.C. 74. Although that case involved the removal of an illegal immigrant a similar intensity of review ought to apply in the case of a person seeking entry. Further, it was not only the subject matter of the decision but the lack of a right of appeal against it which justified a greater intensity of review by the court. Reference was made in this connection to de Smith, Woolf and Jowell's Principles of Judicial Review at page 493.

(7) Mr Devlin challenged the immigration officer's conclusions under each of its three headings.

(i) Lack of knowledge about the cost, length or standard of the course:

(8) It was submitted that the petitioner's position was that the course was to be paid for by his parents and that the precise cost was therefore not a matter of concern to him. So far as the length and standard of the course were concerned, the only information available to the petitioner at the time was a letter from Telford College dated 19 February 2002 inviting him to attend for interview on 1 May. The suggestion that he ought to have made some effort to find out about the course was refuted on the ground that the matter was one that had been decided by his aunt and his parents. He had not achieved sufficient O level passes in Zimbabwe to qualify him for entry to the mechanics' course he had hoped to enter, and had then expressed a wish to obtain further education, in whatever form. This was not possible in Zimbabwe and his family were willing to send him abroad. It was submitted that the genuineness and realism of his intention to study abroad, which he required to demonstrate in terms of Rule 82(i), had to be gauged by whether his attainment was acceptable to the educational establishment to which he was applying. Reference was made in this connection to Islam v Entry Clearance Officer, Dacca [1974] Imm.A.R.83. The fact that the petitioner did not know the start date of the course should not be given undue weight, particularly in the circumstances where it was his parents' decision that he should study abroad. Weight ought to have been attached in this connection to the fact that the petitioner had been offered an interview. Since his parents had sufficient means to pay the cost of the course, no adverse inference should have been drawn against him in this regard.

(ii) Failure to enquire as to employment prospects:

(9) The submission in this regard was that such a failure could never of itself be a sufficient consideration to justify the refusal of leave. It was only where such failure was combined with poor economic circumstances that it could impinge on the question of the honesty and genuineness of the petitioner's intention. Mr Devlin referred in this connection to Entry Certificate Officer, New Delhi v Bhambra [1972] Imm.A.R.14; Goffar v Entry Clearance Officer, Dacca [1975] Imm.A.R.142; and R v Immigration Appeal Tribunal ex parte Khan [1975] Imm.A.R.26. In the present case the petitioner had produced letters from reputable sources confirming his parents' ability to meet the costs of the course and as to their means. Given his parents' willingness to finance him and the fact that his interest was in furthering his education and not in pursuing any particular career, no adverse inference ought reasonably to have been drawn from his failure to make inquiries as to job prospects.

(iii) Discrepancies between what was said by the petitioner and what was said by his aunt:
(10) The discrepancies noted by the immigration officer were in respect of whose idea it was for the petitioner to study abroad and his father's employment. It is clear from the record of the interviews that the petitioner's position was that initially it was his parents' idea that he should study abroad. His aunt, on the other hand, indicated that the petitioner himself had always intended to study abroad. The information provided by the petitioner about his father was that he owned a sewing garment business; he had been a bank manager, but had resigned from that position approximately two years previously. His aunt, on the other hand, said that his father had been a bank manager, and although she was not sure, she thought he still held that position.

(11) Mr Devlin submitted that a mistake by the sponsor could not go against the petitioner. In any event, the employment of his father was only relevant in relation to whether he had the means to support the petitioner; and that fact had been conclusively established by the letter from the petitioner's father's bank in Zimbabwe, and from his mother's employers. It was further submitted that, in the circumstances and having regard to the nature of the discrepancies, the immigration officer ought to have concluded that these arose from an attempt by the sponsor to embellish the petitioner's situation, and that in so far as they had been taken into account, the immigration officer had had regard to an irrelevant consideration.

(12) All of the factors upon which reliance had been placed could give rise to no more than a suspicion as to the genuineness and realism of the petitioner's intention. Further, there were positive features in the petitioner's favour that the immigration officer had failed to take into account.

(b) The respondent

(13) In response, Miss Carmichael for the respondent submitted that it was not unreasonable for the immigration officer to inquire as to what the petitioner knew about the course for which he was attending for interview and to draw an adverse inference from his lack of knowledge about such matters as its cost, duration and start date. In particular, she submitted that the case of Islam was not authority for the proposition that if an applicant's view as to the possibility of being accepted for the course for which he has applied is realistic that provides support for the genuineness of his intention. The genuineness of his intention to study was not a necessary inference from the fact that he had been offered an interview.

(14) Miss Carmichael also took issue with the submission that failure to inquire about job prospects was only a relevant consideration where it was combined with modest means. The information about his parents' means had been intended to satisfy the immigration officer as to the matter raised in para.(iii) of Rule 83, that the petitioner was able, without working or recourse to public funds, to meet the costs of his intended course and his accommodation and maintenance during the course of his studies. There was no information as to whether his parents' support would continue after completion of the course. In any event, this lack of inquiry was a relevant consideration, particularly when coupled with the other factors, notwithstanding the means of the petitioner's family.

(15) So far as the discrepancies were concerned, it was submitted that the fact that he was faced with two different accounts was something to which a reasonable immigration officer was entitled to have regard in reaching his decision as to the genuineness of the applicant's intention to study. It was not unreasonable for him to expect the accounts of the petitioner and his sponsor to coincide, particularly in the case of the apparent close contact between the petitioner and his aunt, who had spoken to having visited the family in Zimbabwe for 21/2 weeks within the past month.

(16) Since the immigration officer requires to be satisfied in terms of each of the heads of Rule 82 it follows that his decision is not open to challenge if it is reasonable on either of the two grounds to which he refers in his decision letter. So far as the general approach to be adopted by the court is concerned, the court must review a decision against the background of the material available to the decision maker at the time of the decision. The context in which the decision is to be reached is that the main purpose of the rules is to prevent deceit. As Dillon LJ observed in Patel v The Immigration Appeal Tribunal [1983] Imm.A.R 76 at p.79:

Although this case does not come into the category of one where the result of a flawed decision may imperil life or liberty, I have approached the issue on the basis that, in view of the nature of the subject matter and the absence of review of the immigration officer's decision, careful scrutiny should be afforded to considering whether the decision is reasonable in the sense of not being beyond the range of responses open to a reasonable decision maker; and in doing so I have been conscious of the need to avoid assuming the mantle of the decision maker.

(17) In this case the immigration officer has summarised the basis of his decision under the three heads to which reference has already been made. I turn now to consider the matter of the discrepancies. While it is clear that there were contradictions between the account given by the applicant and that of his sponsor, both as to whose idea it was for the applicant to study abroad and as to his father's current employment position, I do not consider that these contradictions ought reasonably to have been held against the petitioner when reaching the decision as to the genuineness of his application.

(18) An immigration officer is clearly entitled to test the credibility of an applicant, where it is possible to do so. In the present case, I consider it relevant to note that it appears that the sponsor's position was one that was apparently more favourable to the application than that put forward by the petitioner himself. That being the situation, I am of the view that the immigration officer ought not to have drawn an adverse inference against the petitioner on account either of a mistake by the sponsor or her dishonesty. In any event, discrepancies of this minor nature could have had no real bearing on the issues facing the immigration officer, particularly in light of the evidence produced as to his parents' means.

(19) The immigration officer also founds on the fact that the petitioner had no idea of the cost, length or standard of the courses for which he had applied. In his note, he records that, having spoken to Telford College, the information provided to him about the two courses was that one is a basic course for one year for people with an interest in children, leading to qualification for childcare under supervision, and that the other is a basic general course in advice, guidance and counselling, also for one year, and normally leading to specific training relating to social work or childcare. He also notes that when asked about the courses, the petitioner said that he was here to study only a course in counselling which he described as leading to work "helping people with social, family and drug problems."

(20) I am of the view that the petitioner's lack of knowledge of the cost of the course ought not to have been considered as a factor relevant to the decision making process. There was ample evidence before the immigration officer that the family's means were sufficient to meet the fees and other associated costs, and it is to be inferred from the terms of his decision that he was satisfied that the requirements of para (iii) of Rule 82 were met. A student whose parents have agreed to pay his fees may well have no interest in the precise cost of the course. No adverse inference as to the genuineness of his intention to study ought therefore, in my view, to be drawn against him from that fact. Likewise, I do not consider that failure to inform himself of the start date of the course ought to have been held against the petitioner at the stage at which he had not yet even attended for interview or had the opportunity to visit the College.

(21) So far as the petitioner's lack of knowledge of the length or standard of the course for which he has applied is concerned, it is true that the petitioner had been offered an interview, but he had not, at the time of the making of the decision, been offered a place on either course. I am not convinced that the fact of interview alone conclusively supports the genuineness of the petitioner's intention to study. There was however nothing to suggest that there was anything unrealistic about the petitioner's application despite his poor academic achievement in Zimbabwe and the fact that his primary interest appears to have been in car mechanics. There was, for example, no suggestion that his command of the English language was insufficient to enable him to undertake such a course. The petitioner appears to have stated that he was here to study a course in counselling leading to work helping people. If the course had been a lengthy one involving a commitment to study for several years, the applicant's ignorance of the length might have been a factor that could be held against him. These courses are short and, moreover, are clearly very basic foundation courses. It is difficult, in my view, to imagine what preparation an applicant who had only arrived in the country on the very day of the interview ought reasonably to have made, or what he ought to have known about the course content at that stage.

(22) It is clear from the various authorities to which reference has been made that grounds for doubting that an applicant's intentions are genuine must be based on some evidence as opposed to suspicion. While I accept that the applicant's lack of knowledge on these matters might have excited some suspicion as to the genuineness of his intention to undertake a course of study, I do not consider that the available evidence in this case provides grounds for refusal of the application.

(23) The immigration officer also drew an adverse inference against the applicant from the fact that he had failed to make enquiry as to job prospects should he obtain the qualification as intended. While the absence of any inquiries about job opportunities locally or concern about material benefits to be gained by taking a short vocational course has been held (Khan v Entry Clearance Officer Karachi [1975] Imm. AR 64) to be very relevant in relation to reaching a decision as to whether an applicant will leave the United Kingdom on completion of his course in a situation where there is expenditure of large sums of money by a family in poor economic circumstances, I consider that the present case can be distinguished on its facts. In the first place, it appears that this petitioner's family's financial circumstances are comfortable. Further, it appears from the notes of the interview that the applicant told the immigration officer that he anticipated that the course would lead to work helping people with social, family and drug problems, although he had made no inquiry about the type of job that would be available to him. Given the basic and very general nature of the course I find it difficult to imagine what sort of specific inquiries about job prospects the applicant could realistically have been expected to make by that stage. Even if the immigration officer entertained a suspicion as to the petitioner's intention to return to Zimbabwe, there was no evidence before him to support that suspicion. On the contrary, such evidence as there was tended, in my view, to support the opposite conclusion: the officer was aware of the fact that applicant was in possession of a return ticket to Zimbabwe; his parents and siblings all remained in Zimbabwe, where he had been lived all his life; and his aunt, who was his sponsor, and with whom he would be staying, has limited leave to be in the United Kingdom for the purpose of study.

(24) I consider that the available evidence does not provide reasonable grounds for the refusal on either of the two heads of Rule 82 to which the immigration officer refers: the proposed courses appear to be within the petitioner's ability; his application can be assumed to be realistic since he has been granted an interview; he appears to have at least some general idea as to the use he might make of the qualification; and there appears to me to be nothing in the application to suggest deceit on the petitioner's part. In these circumstances I find I am not satisfied that the decision to refuse his application was one that was open to a reasonable decision maker. I accordingly sustain the petitioner's first plea in law and repel the pleas in law for the respondent and grant declarator that the decision is unreasonable and reduction of it.