Oladiwuro Olufosoye v. Immigration Officer, Heathrow

OLADIWURU OLUFOSOYE v IMMIGRATION OFFICER, HEATHROW

Immigration Appeal Tribunal

[1992] Imm AR 141

Hearing Date: 7 October 1991

7 October 1991

Index Terms:

Refusal of leave to enter -- appellant in possession of valid multiple visit visa -- had worked in breach of condition on previous visit on that visa -- whether breach of condition on earlier visit justified exclusion as conducive to the public good -- whether breach of condition on previous visit itself rendered visa ineffective through a change of circumstances. Immigration Act 1971 (as amended) ss 3(5)(b), 13(5), 14(3), 15(4): HC 251 paras 17, 78, 86.

Held:

The appellant was a citizen of Nigeria who secured a multiple visit visa for the United Kingdom. On her first visit she worked, in breach of the condition attached to her leave. That came to light when she sought leave to enter on her second visit. Leave to enter was refused, on the basis of that breach of condition and because her exclusion was considered, in consequence, as being conducive to the public good. The immigration officer subsequently also refused leave to enter on the ground that (because she had worked on the previous list) the visa had been rendered ineffective through a change of circumstances. An appeal was dismissed by an adjudicator. On appeal, the Tribunal reviewed the ambit of paragraph 86 of HC 251 in the light of paragraph 78 and with reference to paragraph 17 of those rules. Held 1. The adjudicator had erred in placing the burden of proof on the appellant. Whenever it was contended that exclusion was conducive to the public good, following a decision to deport or a refusal of leave to enter, it was for the respondent so to satisfy the appellate authorities: the standard of proof was high. 2. In the light of the provisions of paragraph 78 of the rules, to justify exclusion as conducive to public good under paragraph 86, it was necessary to prove grounds other than those set out in paragraph 78. Paragraph 86 could not be prayed in aid and applied to decisions taken under paragraph 17, if the "conducive grounds" were grounds excluded by the provisions of paragraph 78. 3. The fact that particular conduct would not provide the basis for a decision to deport under s 3(5)(b) of the 1971 Act was relevant in considering whether that same conduct should lead to a refusal of leave to enter on "conducive grounds". 4. A breach of a condition attached to limited leave on a previous visit to the United Kingdom could not alone justify a refusal of leave to enter on a subsequent occasion on "conducive" grounds. 5. On the facts, it had not been established that the appellant intended, on her second visit, to take employment if not authorised to do so. It followed that the visa had not been rendered ineffective through a change of circumstances.

Cases referred to in the Judgment:

William Scheele v Immigration Officer, Harwich [1976] Imm AR 1. Farzin Khazrai v Immigration Officer, London (Heathrow) Airport [1981] Imm AR 9. R v Immigration Appeal Tribunal ex parte Anilkumar Patel [1987] Imm AR 164. Immigration Appeal Tribunal v Anilkumar Patel [1988] Imm AR 35 (CA): [1988] Imm AR 434(HL). Oliver Nkiti v Secretary of State for the Home Department [1989] Imm AR 585. Miyoba (unreported) (2984).

Counsel:

W Gryk for the appellant; R Lonergan for the respondent PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, AK Khandwala Esq JP

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Nigeria, appeals against a decision of an adjudicator (Mr LJ Smith) dismissing her appeal against the refusal of leave to enter following a decision that her then current multiple visit entry clearance was ineffective. The appellant arrived from Cairo on 7 September 1990. She was eventually refused leave to enter on 18 September 1990. The notice reads: "You hold a current entry clearance endorsed multiple visit but I am satisfied that refusal is justified because exclusion would be conducive to the public good in that on a previous visit in 1989 you did not comply with your conditions of leave to enter. The visa is not therefore effective". By letter of 29 September 1990 that notice was amended by the adding of a further ground: "At any appeal before the appellate authority, the immigration officer will rely on the following reasons: You hold a current entry clearance but I am satisfied that a change of circumstances since it was issued has removed the basis of your claim to admission. The visa is not therefore effective". The explanatory statement deals only with the ground that the appellant's exclusion would be conducive to the public good, the immigration officer having not been concerned in his interview with the alternative ground upon which reliance is now placed. The background facts The material facts do not seem to be in dispute. On 6 March 1989 the appellant applied for entry clearance for a one month visit to the United Kingdom. This visit was said to be a private visit and her host would be her husband. However, on her IM2 she stated that her husband was presently in Lagos. On 16 March 1989 the appellant was issued with a multiple visit entry clearance. She entered the United Kingdom on 30 March 1989 and was granted leave for six months. The appellant qualified as a state registered nurse during a previous stay in this country in 1964 or 1965, and she owns a house in Forest Gate, London. In July 1989 she took employment in order to help pay the mortgage or the rates. In June or July the Noel Nursing Agency applied for a work permit for her, and by letter of 13 July 1989 the Overseas Labour Section of the Department of Employment replied that they had forwarded the application to the Home Office. The application was refused on 13 October 1989 on the grounds that the purpose for which the application was made required a work permit, and she was not admitted with such a work permit. The appellant left the United Kingdom on 19 November 1989. On arrival at Heathrow on 7 September 1990 the appellant told the immigration officer that she wished to visit the country for three months in order to try and sell her house, and to remove a sitting tenant. When reinterviewed she said that she wanted to return to Nigeria for Christmas, and she admitted that during her previous visit she had been employed as a nurse and stated that she had taken that employment to help pay the mortgage on the house. It is recorded in the explanatory statement that when asked if she would work during the present visit, she stated that she would if she was allowed to but that her attention would be centred on the property and she did not think that she would have the time. It is further recorded that the appellant was met by her son at the airport and when he was questioned regarding his mother's 1989 visit, he said that she had wanted to treat that visit as a working holiday but would work only for two to three months. A copy of a letter dated 13 October 1989 written by the appellant was found in her baggage on arrival in 1990. In that letter the appellant says that she never had the intention of applying for indefinite leave to remain. She applied for a work permit for "my present visit here or any subsequent visits during which time I hope to be working while I am over here". In her evidence to the adjudicator the appellant confirmed the broad background to her leave in 1989 and her employment. She said that as she received no reply to the letter of 13 October 1989 she sought advice. She had thought that as she had trained in the United Kingdom it was all right. She said that she would not have worked last time if she had realised she should not have done. As to the 1990 visit, she said that she came back mainly to visit her son and sell the property. She continued: "I had no intention of working. I intended to stay until before Christmas as I wanted to be back in Nigeria for Christmas". She was referred to her recorded statement in the explanatory statement regarding working during her 1990 visit. She said that her answer was "my main concern is to sell the property". She repeated that she had no intention of working. The adjudicator's approach In his determination the adjudicator set out the evidence comprehensively. He listed a number of factors he saw as adverse to the appellant's case. The adjudicator concluded: ". . . I therefore have come to the conclusion that the appellant has not discharged the onus of proof upon her on the basis of balance of probabilities. I think that the appellant is a far more intelligent lady then she gave credit for that she well knew that she should not work without first getting permission and she has therefore sought to excuse herself by laying the blame on an assistant in a nursing agency. Whereas the onus was of course upon the appellant making sure that she was able to work before embarking on any employment. It also seems to me that it is pointless granting a visa on a specific ground if in contravention of that ground the appellant utilised the visit for some other purpose than that permitted and then simply says that that is not really a material change and that one should overlook it. I accept the presenting officer's submission that it is important to uphold the conditions on which passports are issued and that the conditions are imposed for very good reasons as in this case it may well be to protect the labour market and that if one simply says well you can overlook it if it does not happen again then of course it could open the floodgates for everyone presenting a similar argument or asking to be treated in the same way. And of course working in contravention of a prohibition is as the presenting officer pointed out, a criminal offence which cannot be lightly overlooked and therefore I find that there has been a change of circumstances that the refusal is justified because the exclusion would be conducive to the public good and I therefore dismiss this appeal". With respect, these concluding paragraphs contain errors of law. First, the onus is not upon the appellant but upon the immigration officer in respect of both grounds relied on. Further, it is arguable that in respect of the ground that the appellant's exclusion is conducive to the public good, the assertion is so serious that the standard of proof may be at the higher end of the spectrum of the civil standard of balance of probability. It is not entirely clear whether in his final sentence the adjudicator confused the two grounds of refusal or whether there is simply a word missing. If indeed the adjudicator held that both grounds of refusal were justified, he does not seem to have set out the grounds on which he concluded there was a change of circumstances. The proceedings before the Tribunal When the first case was first argued before the Tribunal, the Tribunal indicated to Mr Gryk and Mr Lonergan that it might raise the general question of the ambit of the "conducive" ground and its link (if any) to the use of the phrase "conducive to the public good" in other contexts in the Immigration Act 1971 or the immigration rules. In particular, the Tribunal drew attention to the possible connection with the phrase as used in section 3(5)(b) of the Act as a basis for deportation. The matter was then adjourned to allow further thought on both grounds. The applicable immigration rules These are to be found in HC 251 paragraphs 17 and 86: "17. A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the immigration officer is satisfied that: (a) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the clearance; or (b) 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 under paragraphs 53 to 55 since the issue of the entry clearance; or (c) refusal is justified on grounds of restricted returnability, on medical grounds, on grounds of criminal record, because the passenger is the subject of a deportation order or because exclusion would be conducive to the public good. The scope of the power to refuse leave to enter on these grounds is set out in paragraphs 19 and 81 to 86". "86. Any passenger except the wife and child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where: (a) the Secretary of State has personally so directed; or (b) from information available to the immigration officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter". The two grounds on which reliance was placed are contained in rules 17(b) and (c). Before us Mr Lonergan somewhat faintly argued that the appellant had made a false representation on her IM2 in that it might be said she had stated that she intended to visit her husband in this country. However, she clearly stated on the form that her husband was then in Lagos and, more, before the adjudicator she said that she had put her husband's name as the sponsor because he was responsible for her. As we indicated at the hearing, we do not think that it is arguable that the visa could be declared non-effective by reason of any false representations. Exclusion conducive to the public good -- the ambit of the ground This phrase appears in the immigration rules not only in the context of refusal of leave to enter but in deportation. In a deportation context the rules simply apply the foundation for deportation set out in section 3(5)(b) of the Immigration Act 1971. Whether the issue arises in a deportation or admission context on appeal, it is for the immigration officer to satisfy the appellant authority that the decision is justified on that ground. Further, insofar as the justification consists of deception or other criminal conduct, the standard of proof will be at the higher end of the spectrum of balance of probability. The phrase is used in the Immigration Act 1971 not only as a ground for deportation but also as a ground for excluding the right of appeal in respect of refusal of leave to enter or entry clearance, and on a particular aspect of that ground against variation of or refusal to vary leave to remain or a decision to make a deportation order (see sections 13(5), 14(3) and 15(4)). The phrase imports a wide discretion (see eg Nkiti v Immigration Officer, Gatwick [1989] Imm AR 585). Its ambit may be expressly limited by the provision (eg section 14(3) and 15(4)) or impliedly by its context. So, paragraph 86 appears in part X of the rules, a part which also contains paragraph 78. The purpose of that paragraph is clearly to set the scene for the grounds of refusal of leave to enter contained in paragraphs 81 to 86. Paragraph 78 reads: "78. A passenger who does not qualify for admission under the foregoing provisions of these rules is to be refused leave to enter. In addition, the immigration officer has power to refuse leave to enter on any of the grounds set out in paragraphs 81-86 below. Except as provided for in paragraph 75, the fact that a passenger satisfies the formal requirements of the foregoing provisions of these rules is not conclusive in his favour. Leave to enter may be refused if, for example, the passenger has not observed the time limit or conditions imposed on any grant of leave to enter or remain; if, whether or not to his knowledge, false representations have been employed or material facts not disclosed, orally or in writing, for the purpose of obtaining an entry clearance; or if a previous leave to enter or remain has been obtained by deception. But a passenger who holds a current entry clearance is not to be refused leave to enter except in the circumstances described in paragraph 17". Paragraphs 81 to 86 set out grounds of refusal going to medical reasons, criminal record, the existence of a deportation order and the general ground with which we are concerned -- exclusion conducive to the public good. Paragraph 78 clearly confers a discretion on immigration officers to refuse leave to enter, listing by way of example a number of grounds as prerequisites for the exercise of the discretion. It limits the power conferred where an applicant as a current entry clearance to circumstances described in paragraph 17. It seems to us that, given paragraph 78, "exclusion to the public good" as it appears in paragraph 86 should be construed as requiring grounds other than or in addition to those set out in the earlier paragraph. In particular, paragraph 86 should not be used as a back door so as to import into paragraph 17 grounds which, under paragraph 78, are excluded from it. Secondly, there is an argument for construing the phrase "conducive to the public good" as having the same meaning wherever used in the 1971 Act and the rules. This was so held by Taylor J in R v Immigration Appeal Tribunal ex parte Patel [1987] Imm AR 164. That case, as this, was concerned with refusal of leave to enter despite the applicant holding a current visa and the ground of refusal, as in this case, was that the applicant's exclusion was conducive to the public good. However, the point at issue in Patel was the acquisition of earlier leave through deception. It was held by the learned judge that unless the ground could have founded deportation, it could not found refusal of leave to enter. The case was argued in the Court of Appeal ([1988] Imm AR 35) and the House of Lords ([1988] Imm AR 434) on the basis of this finding. We read this case as indicating that conduct which could not as a matter of law found a decision to make a deportation order by virtue of section 3(5)(b) of the Act could not as a matter of law form the basis of a ground of refusal on the basis that exclusion would be to the public good. Further, it may be argued, circumstances which as a matter of fact could not or would not lead to deportation on "conducive" grounds could not lead to refusal on the same grounds. At the very least, it seems to us, the fact that the conduct on which reliance is placed for refusal would not form the basis for deportation on conducive grounds is a relevant factor in considering whether refusal of leave to enter was justified. In the context of this case, it should be recalled that deportation on the grounds of breach of limited leave (and no more) would fall within section 3(5)(a). It would be curious if the statute having provided expressly for deportation on this ground, that ground would also fall within "conducive to the public good". So far as refusal of admission is concerned, while paragraph 78 expressly refers to the failure to observe a time limit or conditions imposed on any grant of leave to enter or remain, these grounds do not form part of paragraph 17. It seems to us that these are relevant factors in construing the ambit of the "conducive" ground as applicable to the holder of a current visa. The Tribunal has considered this matter in at least two cases -- Khazrai [1981] Imm AR9 and Miyoba (2984). The adjudicator was referred to and considered the latter case. In Khazrai the Tribunal was considering HC 394, the relevant provisions of which are identical to those relevant to the present case. In rejecting an argument that the principles applicable to recommendation by a court for deportation should be applied to refusal of admission, the Tribunal differentiated between refusal and the effect of a deportation order. In the Tribunal's view, "a deportation order prohibits the subject of it from returning to this country whereas a refusal of admission does not necessarily have this effect". The Tribunal commented that if the principles relating to the making of a deportation order were intended to apply in cases of refusal of admission, it would be reasonable to assume that the rules would say so. However, they did not. First, we do not, with respect, place a great deal of weight upon the distinction drawn between the making of a deportation order and refusal of admission. Indeed, it is arguable (as has been argued in a recent case before the Tribunal) that the refusal of admission is more stringent than the making of a deportation order for the simple reason that there is provision for the revocation of the order. Secondly, while it is true that there is no express reference to the type of circumstances which are relevant to a refusal on "conducive" grounds, the use of the same phrase must surely mean that any differentiation between deportation and refusal must be on the basis of the context of the decision. In Miyoba the Tribunal agreed with a previous decision (Scheele v Immigration Officer [1976] Imm AR 1) that the power to refuse entry as conducive to the public good should not be lightly used. Secondly, the Tribunal stressed that the immigration control structure, where an entry clearance was held, reflected a full enquiry at the stage of application for entry clearance and a limited enquiry only at the stage of application for leave to enter. The phrase "conducive to the public good" could not and should not be used to justify a second full enquiry. The Tribunal commented that if it had been intended to provide at the second stage that failure to comply with a rule of itself would be a ground, nothing would have been simpler to draft. The Tribunal held that reliance on public funds during a previous stay contrary to the rules did not in the circumstances of that case necessarily lead to the conclusion of future reliance and, given that, the facts of the case did not justify refusal as being "conducive to the public good". Conclusions as to the law In our view, considering paragraphs 17, 78 and 86 as a part of a whole, breach of limited leave of itself cannot justify refusal of admission as being conducive to the public good. Were it to be so, it would make a nonsense of the structure to which we have referred and in effect would render the last sentence of paragraph 78 largely meaningless. We agree with the statement of the Tribunal in Miyoba that if breach of previous limited leave were to be a ground on which an entry clearance could be set aside, this would be specifically included in paragraph 17. It is, in our opinion, unjustified to use the general phrase "conducive to the public good" as a vehicle for bringing the kind of matters listed in paragraph 78 within the ambit of paragraph 17. Having said that, clearly breach of previous limited leave would be a factor in considering whether the applicant's conduct as a whole is such that refusal of admission should be conducive to the public good. Such refusal could be justified either on past conduct or on a likely repetition of the previous conduct. As is shown by the approach in Miyoba it is a matter of fact to be decided on the evidence, taking into account all the circumstances of the case. Insofar as the adjudicator seems to imply in his concluding paragraphs that the breach of limited leave of itself justified refusal on the ground that it was conducive to the public good, in our view he erred in law. Further, with respect, ignoring for the moment that the appellant had an entry clearance, it cannot possibly be right that previous breach of limited leave for ever excludes a person from entry into this country. Paragraph 78 confers a discretion on an immigration officer and clearly the circumstances of the whole case should be considered before the grounds set out in paragraph 78 justify refusal. This is the more so when breach of limited leave cannot of itself be a ground for refusal. In our view, the immigration officer erred in law when he took the view that the conduct in taking employment in contravention of the prohibition on a previous occasion was sufficient to render the appellant's exclusion conducive to the public good. The adjudicator erred in law in putting the onus on the appellant to satisfy him that her exclusion was not conducive to the public good and in our view further erred in law insofar as he approved the approach of the immigration officer. The law applied to the facts As to facts the adjudicator thought this case distinguishable from Miyoba. The adjudicator summed up his view of the case: ". . . In this particular case we have a lady who was by any stretch of imagination an intelligent lady, who has a passport in which it is clearly endorsed that the purpose of the entry into the United Kingdom was for a purpose other than working and work was expressly prohibited. Notwithstanding that prohibition the appellant sought out an agency and I am conscious of the fact that in the address book there were the names and addresses of a number of agencies and that she obtained employment in a hospital through that agency and earnt somewhere in the region of @4,000 to @5,000. She had told the entry clearance officer that she had taken the employment in order to help pay the mortgage on the house as they were some @6,785.00 in arrears. To me, today, she said that she had taken the job in order to pay a distress warrant for rates of something less than @500 but in the event I was not shown any documents relating to the arrears of mortgage or for the distress warrant or details for any payments or receipts for any payments that had been made. I was told that the purpose of the visit was to sort out the position of the sitting tenant and put the property up for sale. It appears that the tenant is not now in the property but I was not told anything about whether the property had now been put up for sale. I also saw from the explanatory statement that the husband intended to come to the United Kingdom in 1990 but it would appear that he did not in fact come to the United Kingdom or make an application for a visa or if he did so then I was not told anything about it. I notice also that on the application made by the appellant for a work permit she had indicated that she wanted to work on each occasion that she visited the United Kingdom and finally that she had indicated to the entry clearance officer that she wanted to return to Nigeria with her son for Christmas. This matter came before me today 4 January but apparently neither the appellant nor presumably her son had returned to Nigeria as she had indicated was her intention". The adjudicator was clearly of the view that at the very least the appellant ought to have known that the employment which she undertook was contrary to the terms of her leave. We see no reason to doubt that conclusion, but regrettably the adjudicator did not expressly comment on the appellant's evidence before him that when she went to the agency they telephoned the Home Office and "they said I would start straight away". Further, the adjudicator limited his comment on the application for a work permit to the fact that the appellant had said in that application she wanted to work on each occasion that she visited the United Kingdom. It seems to us however that the very act of applying for a work permit indicated that whether or not the appellant initially took work contrary to the endorsement in the passport, she was seeking to put her employment on a legitimate immigration basis. The fact that she indicated she wished to work on each visit is not an indication to us that she intended to work if the permission she was seeking was refused. Quite the contrary. Thirdly, the adjudicator commented on the discrepancy as to the reason why the appellant had taken the employment in the first place. However, there seems to have been no question put to the appellant going to the reason she gave in evidence and the reason recorded in the explanatory statement. The adjudicator also commented that he had not been told as to whether the appellant's property had been put up for sale or anything about the husband's intended visit to this country in 1990 or why the appellant and her son had not returned to Nigeria by Christmas. Once again none of these matters appear to have been put to the appellant and it is difficult to rely on them as matters adverse to the appellant when she has not been given any opportunity to comment on them. As we have said, it is for the immigration officer to satisfy us that in the circumstances of this case the refusal of the appellant's admission was conducive to the public good. We do not think it established on the evidence that the appellant intended to work on her second visit once her application for a work permit had been refused. While it is arguable that the appellant took the employment knowing that she should not, we can put it no higher than that. The adjudicator made no express finding on the statement by the appellant that she thought the agency had obtained permission. For the reasons we have set out, we do not think that the matters listed by the adjudicator can in the circumstances of the case be put in the scale against the appellant. Taking all the circumstances into account and weighing the factors as we have indicated above, we conclude that the immigration officer has failed to satisfy us that the decision that the appellant's exclusion was conducive to the public good was justified. On this ground, therefore, the appeal is allowed. Change of circumstances Mr Gryk conceded that there had been a change of circumstances in that since the issue of the multiple visa, the applicant had worked. However, argued Mr Gryk, this did not remove the basis of her claim to admission in respect of the present application. There was no evidence that she intended to work during this visit. Mr Lonergan on the other hand argued that on the evidence the appellant intended to work on the initial and subsequent visits. We have already considered the question of the appellant's intention to work and we have held that it has not been established that she intended to work once her work permit application had been refused. That being so, we agree with Mr Gryk that the change of circumstances which had occurred did not remove the appellant's claim to admission as a visitor. In the circumstances of this case, it seems to us that that could only occur if it was shown that she did not intend on her second visit to abide by the rules applicable to that visit. That has not been shown. On this ground also, the appellant succeeds. The appeal is allowed.

DISPOSITION:

Appeal allowed

SOLICITORS:

BM Birnberg & Co, London SE1