The decision

ar OB (Immigration - Student - Change of Circumstances) Nigeria [2004] UKIAT 00055


Date of HearingDetermination : 3 February 2004
Date Determination notified:
25 March 2004


Mr C P Mather (Chairman)
Mr R Hamilton
Mrs S I Hewitt, JP



Chief Immigration Officer Heathrow

For the appellant : Miss C. Boaitey, counsel, instructed by BSO Solicitors
For the respondent : Mr M. Davidson, Home Office Presenting Officer


1. The appellant, Ola Bamidele, is a citizen of Nigeria.

2. With permission, he appeals the determination of an Adjudicator, Mr W.A. Jeffries, promulgated on 23 June 2003. In that determination the Adjudicator dismissed his appeal on immigration and human rights grounds. The appeal to the Adjudicator was from a decision of the respondent made on 14 December 2002 to cancel the appellant's leave to enter.

3. Despite the appeal number, this was not an appeal on human rights only. It is an immigration appeal with some human rights aspects.
4. The appellant was granted leave to enter the United Kingdom as a student on 11 October 2002. He had previously been granted twelve months leave to enter to enable him to commence studies as a student at South Chelsea College. During the second period of leave he returned to Nigeria for a short time. He was stopped on arrival back on 4 December 2002. On 14 December 2002 his leave to enter was cancelled. This was done under the provisions of Rule 321(A) of HC 395 which, so far as relevant, reads as follows:

‘321. 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:

(i) There has been such a change in the circumstances of that person’s case, since leave was given, that it should be cancelled.’

5. There are other grounds for cancelling leave to enter which are not relevant to this appeal.

6. The reasons for the respondent's decision are set out in an explanatory statement dated 31 January 2003. The statement followed an interview with the appellant on 14 December 2002. It is relatively long and should be read for its full terms and effects. However, the thrust of it is that the appellant's leave to remain until 30 September 2003 was subject to a prohibition on recourse to public funds and a restriction on the taking of employment. He told the interviewing immigration officer that he had been studying at South Chelsea College since September 2001 but was also working twenty hours a week in W.H. Smith. Because records indicated that the appellant's wife and son had applied for, and been refused, visit visas to come to see him in the United Kingdom, the interviewer was concerned as to whether he was a bona fide student. He was therefore given temporary admission and interviewed again. By the next interview enquiries had been made. South Chelsea College said that the appellant had not attended the college since May 2002. The college’s academic year ran from September to May with the vacation between May and September. During the course of the interview it became apparent that, after finishing the academic year in May 2002, the appellant registered as a student for the year beginning September 2002. However, he did not attend any classes. He told the interviewing officer that the course was not right for him and that the college registrar had advised him to remain registered but change to a different course in January.

7. The appellant said his father-in-law had died in Nigeria in late September. He also said he visited his sick son in Nigeria from 13 November 2002. He admitted that he had been working for up to thirty-nine hours a week at W.H. Smith and at Parkwood Health Care.

8. Further enquiries showed the appellant told the respondent in his application to extend his leave in September 2002, that he was following a full time three year course of study at South Chelsea College and intended to continue doing so. A letter from W.H. Smith, dated 16 December 2002, confirmed that he had been, and was still, working as a part time sales assistant at Kings Cross from July 2002. A Lloyds Bank statement produced by the appellant showed he was employed by Parkwood Health Care between 11 October and 8 November 2002. The respondent concluded that the appellant was working considerably more than the twenty hours per week allowed.

9. There was a further interview with the appellant, on 4 December 2002. The appellant accepted he had been working more than the permitted twenty hours per week and had not told the respondent when applying for his extension of leave. Following a consideration of paragraph 321(A) of HC 395 the respondent noted that the leave had been extended to enable the appellant to pursue a course in computer studies, but he had not attended any classes since the beginning of the academic year on 16 September 2002. There was no satisfactory explanation for that. He had, however, during that period taken employment for longer than the permitted hours and knew that he should not have done so. The respondent decided that the appellant was not a bona fide student and was engaged in employment for which a work permit was required. He therefore considered that a change in circumstances had occurred since the leave was given on 11 October 2002 such that it should be cancelled.

10. The explanatory statement also considered the appellant's claim that the decision to refuse leave to enter would breach his human rights under Article 8 of the European Convention on Human Rights and Article 2 of Protocol 1 to the Convention (the right to education).

11. The Adjudicator did not refer to paragraph 321(A) of HC 395 but only to those rules dealing with the requirements for leave to enter or remain as a student. The issue the Adjudicator said he had to decide was whether the appellant still met the requirements for entry as a student, or whether there had been such a change in circumstances that the leave to enter should be cancelled. He considered the appropriate issues, notwithstanding not mentioning Rule 321(A) of HC 395 and made the following findings of fact:

(a) The appellant has successfully completed the first year of a three year course which concluded in May 2002. He had enrolled on the second year of the course commencing September 2002

(b) During the vacation between the end of one course (sic) and the beginning of the other, the appellant worked in excess of twenty hours per week which he was entitled to at that time.

(c) The appellant had continued to work in excess of twenty hours per week during term time until he left the United Kingdom on a trip home to Nigeria. He has not attended the college at all during the academic year starting September 2002.

(d) In the interview on 5 December the appellant said that he had registered in September but the class was no good and told the college he wanted to start ‘all over’ in January. He produced a letter from South Chelsea College dated 12 December 2002 confirming he was registered as a full time student until the end of the academic year on 30 May 2003. The letter said the college had no objection to the student continuing his current course in January on companionated (sic) grounds.

12. The appellant produced no evidence to the Adjudicator (at the hearing on 2 June 2003) that he had attended at all during the balance of the academic year which had concluded on 30 May 2003. There was also no evidence before the Adjudicator as to whether or not the appellant had kept his employment within the required limits during that time.

13. Finally, the Adjudicator said he was unable to make a finding as to the reason the appellant returned to Nigeria. At one point the appellant said he had gone home because his father had died; at another point his father-in-law died at the end of October; elsewhere that his father-in-law died at the end of September. The appellant produced evidence to show that there had been a burial service on 30 November. At another time he said he went to see his son who was sick with malaria, and elsewhere that he had intended to bring his wife and family to the United Kingdom for Christmas but their application had been refused. At one time he gave as the reason for wishing to recommence studies in January that his son was sick. Elsewhere he says that it was because the class was no good. The Adjudicator said he was unable to make a finding of fact as to which if any of those accounts were true.

14. The Adjudicator found that there would not be a breach of Article 2 of the First Protocol to the European Convention on Human Rights. He said that counsel did not expand on the two Articles (she did not before us either). Article 2 provides the right to an effective education but does not provide that the education, in whatever subject, must be available wherever and whenever the appellant may choose. In any event, the appellant has himself distanced himself from his education. The Adjudicator found there was no evidence to support the assertion that there would be a breach of Article 8 ECHR if the appellant is removed from the United Kingdom.

15. Before us Miss Boaitey sought to argue that following the decision in Zhou [2003] EWCA Civ 51 the appellant was entitled to be treated as a student because he had leave to enter as a student. We heard long submissions from her about this but we do not accept that the case of Zhou has any bearing on this appeal. The facts of Zhou are quite different. Mr Zhou had leave to enter and started attending a college which found him an unsatisfactory student. He left that college but did not take immediate steps to enrol at an alternative establishment. His first college notified the immigration authorities that he had left and he was arrested. The respondent detained Mr Zhou and concluded that he was liable to administrative removal in accordance with Section 10 of the Immigration and Asylum Act 1999 because he was a person who had failed to observe a condition of leave to enter or remain. Not only had Mr Zhou had a poor attendance at his first college but he had also been working in breach of his landing conditions.

16. The first and most immediate difference is that Mr Zhou was in-country, when the respondent made his decision, whereas the appellant was seeking to enter. Second, the method of dealing with Mr Zhou was such that he did not have a right of appeal. Because he had no right of appeal he had applied for judicial review of the decision. He was refused permission and the Court of Appeal dealt with the appeal against that refusal. At paragraph 35 of the judgement, Lord Phillips, LR said this:

‘If the Secretary of State considers it objectionable that those who have been given leave to enter as students are not pursuing their studies, the appropriate course would seem to us to be to take steps to remove them for that reason. At present the appropriate way of doing this would seem to be to curtail, under Section 3(3)(a) of the 1971 Act and paragraph 323 of HC 395, the period for which the student has been given leave to enter, and then to remove the student under Section 10 of the 1991 Act. The former step would give rise to the right of an in-country appeal.’

17. The court considered the meaning of the word ‘student’ and found that Mr Zhou remained a student for the purposes of Chapter 4 of the Immigration Directorates Instructions. He was not in breach of any entry condition by working as students are permitted to do. For that reason Mr Zhou was not liable to administrative removal under Section 10 of the Asylum and Immigration Act 1991 which provides that a person may be removed from the United Kingdom if:

‘(a) Having only 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.’

18. The course of action in this appellant’s case is similar to that recommended by the Master of the Rolls in Zhou. In the case of Zhou the appropriate course would have been to act under paragraph 323 of HC 395. Paragraph 323 was appropriate because the appellant was in-country with leave to remain. The equivalent provision, relevant to this appellant as he was seeking to enter, is paragraph 321(A). Whichever of those two paragraphs is invoked by the respondent, it generates an in-country right of appeal. Any question of whether or not this appellant is or was a student is therefore irrelevant. The case of Zhou has no application in these circumstances.

19. Having established that, we looked at the Adjudicator's decision. He upheld the respondent's decision to cancel the leave to enter. Although Miss Boaitey argued that discretion should have been exercised differently, Mr Davidson quite properly argued that this is not a rule in which discretion plays a part. The respondent may have had discretion whether to invoke the rule in the first place, but that is not a matter that we and the Adjudicator can consider.

20. It is quite clear from the evidence that the appellant was not following his studies as he had indicated that he would when he obtained his extended leave. He was working full time and had been back to Nigeria during term time. The Adjudicator was quite entitled to find that the appellant was not being truthful about why he had gone back to Nigeria when he told so many different stories. The letter from the college saying that they had released the appellant until January on compassionate grounds was written only after he had been stopped on his return to the United Kingdom. That letter does not tally with his account that he wished to start his course again.

21. The respondent, and the Adjudicator, were both entitled to conclude that there has been such a change in circumstances since the leave to enter was given that it should be cancelled. It cannot be said that the Adjudicator’s decision is plainly wrong or perverse. We have set out above why there is no error of law in his determination.

22. The appeal is dismissed.