Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 145

P415/11

OPINION OF LORD STEWART in the Petition of (1) HEATHER ANNE NUGENT (Assisted Person) and (2) FINDHORN FOUNDATION Petitioners; for judicial review of a decision made on 7 April 2011 by an immigration officer acting for the Secretary of State for the Home Department that the first-named petitioner should be refused entry to the United Kingdom and Answers for THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________

Petitioners: Caskie; McGill & Co, Solicitors

Respondent: McIlvride; Office of the Solicitor for the Advocate General

11 September 2012

[1] The first petitioner is Heather Anne Nugent, a Canadian national resident in Germany. On 7 April 2011 she arrived at Edinburgh Airport on a flight from Berlin. She meant to participate in the "Eco Experience Week" followed by the one-week "Spiritual Practice - Permaculture" course organised by the Findhorn Foundation, second petitioners. When Ms Nugent explained her intention to participate in the Findhorn Foundation courses, she was refused leave to enter as a visitor and issued with directions for removal by the next plane to Berlin at 19.00 on 9 April. The notice of refusal of leave to enter gave the following reasons [N 6/1]:

"You have asked for leave to enter the United Kingdom as a visitor for 2 weeks but I am not satisfied that you do not intend to study at a maintained school.

You intend to attend workshops and seminars being run by the Findhorn Foundation. The Findhorn Foundation does not qualify as an accredited education provider as they do not meet the criteria as laid out by the UK Border Agency in that they do not hold a sponsorship licence. You therefore do not qualify to be admitted to the UK as a student visitor.

I therefore refuse you leave to enter the United Kingdom."

It is a matter of agreement that the reference in the first paragraph to the maintained school condition is a mistake. The effective part is the second paragraph.

[2] The respondent's Answers state that Ms Nugent was given temporary admission when her petition was lodged in this Court; and that she left the United Kingdom on 15 May 2011 to travel to Bulgaria. Presumably she attended her courses. The issue has ceased to be a live one for her personally. The issue remains of practical importance for the Findhorn Foundation, who are the second petitioners, for the reason that the Findhorn Foundation is reliant to a material extent on income earned from the provision of alternative lifestyle courses to non-EU nationals. The first petitioner's complaint, though now completely academic in itself, is being used as a vehicle for obtaining a judicial decision on the issue and I am prepared to entertain the application on that basis.

[3] The issue as it is presented to me is not about the lawfulness of the immigration rules: the issue is about the rationality and thus the lawfulness of the way in which the rules are being applied to non-EU nationals seeking to enter the United Kingdom for the purpose of pursuing courses which do not lead to an "approved qualification". At one point the question was also said to be about the meaning of the immigration rules. I heard submissions on behalf of the parties in this case and the related case of Seiko Kato and the Findhorn Foundation together on 29 February and 1 March 2012 and made avizandum. Mr Caskie represented all the petitioners and Mr McIlvride appeared for the Secretary of State in both cases.

[4] Having reflected on the matter I have decided that the petition must be granted and that it is proper to set aside the decision complained of. I have come to this decision on the grounds stated in the related case of Seiko Kato and I refer to my Opinion in that case for the facts and the reasons. In this case I shall repel the respondent's pleas-in-law, sustain the petitioners' plea and order reduction of the decision of 7 April 2011 to refuse the petitioner leave to enter the United Kingdom.