Aiyegbeni & Ors, R (on the application of) v Secretary of State for the Home Department

A refusal of leave to enter following cancellation of existing leave may generate a statutory right of appeal where the purpose specified in the entry clearance is the same as that specified in the application for leave to enter. The court should not rewrite clear statutory language to remove that right merely because another construction might better serve an assumed legislative purpose. However, the right of appeal may be limited to an appeal from outside the United Kingdom where the statutory conditions in Nationality, Immigration and Asylum Act 2002 section 92 are met. There is no general residual discretion to convert that statutory out-of-country appeal into an in-country appeal.

Three judicial review claims concerned immigration decisions made after immigration officers examined the claimants on their return to the United Kingdom and cancelled their leave to enter. The first and third claimants had entered as students; the second had entered as a visitor. The Secretary of State argued that section 89(1) of the Nationality, Immigration and Asylum Act 2002 excluded any appeal, or alternatively that any appeal had to be brought from outside the United Kingdom. The claimants sought an unrestricted, in-country right of appeal. The central issues were the construction of section 89(1)(b), the application of section 92(3B) and (3C), and whether cancellation constituted variation rather than refusal of leave to enter.

1. Section 89(1)(b). The wording of section 89(1)(b) was clear. The purpose specified in the entry clearance had to be compared with the purpose specified in the claimant’s application for leave to enter. It did not permit the court to substitute the immigration officer’s conclusion that the claimant had misstated or lied about the purpose. Parliament could readily have used that formulation, as it had done in related provisions. The claimants therefore had a right of appeal in the relevant circumstances.
2. Out-of-country appeal. Sections 92(3B) and (3C) applied. The statutory scheme required the appeals to be brought from outside the United Kingdom. The reasoning in R (on the application of RK (Nepal)) v Secretary of State for the Home Department [2009] EWCA Civ 359 confirmed that legislation could validly limit an appeal in that way. The special or exceptional factors discussed in R (on the application of Lim and Another) v Secretary of State for the Home Department [2007] EWCA Civ 773 arose under a different statutory provision and created no discretion in these cases.
3. Nature of the decision. Cancellation under paragraph 2A(8) of Schedule 2 to the Immigration Act 1971 was treated by paragraph 2A(9) as refusal of leave to enter. It was not a variation of leave. Where the claimant’s immigration history began with entry clearance and the alleged change concerned the original purpose of that clearance, paragraph 2A(2A) governed. The alternative routes in section 92(3B) and (3C) also supported the same result.
4. The court declared that each claimant had, and only had, an out-of-country right of appeal under section 92(3B) and/or (3C). The claimants in the Aiyegbeni and Rashid cases were ordered to pay half the defendant’s costs. In Awosanmi, the defendant was ordered to pay two-thirds of the claimant’s costs.

Not stated in the judgment.