Khazrai v. Immigration Officer, London (Heathrow) Airport

KHAZRAI v IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/66628/80(1904)

Immigration Appeal Tribunal

[1981] Imm AR 9

Hearing Date: 3 December 1980

3 December 1980

Index Terms:

Leave to enter -- Refusal -- Exclusion "conducive to the public good" -- Possession of opium for friend's use -- Appellant personally of good character and a good student -- Guidelines for immigration officer: for example, 'character, conduct or associations' of passenger -- Comparison with principles observed in criminal courts when deciding whether to recommend deportation -- Relevant that long-term effect of deportation order generally more serious than a refusal of leave to enter -- Same principles not made applicable in both cases under the immigration rules -- HC 394, paras 76, 141.

Held:

The appellant was an Iranian citizen who was initially given leave to enter on a student visa, but after examination of his baggage by a customs officer had revealed his possession of 3 grammes of opium the immigration officer, acting under para 6(2) of sch 2 to the Immigration Act 1971, cancelled the leave just given, considering that under the provisions of para 76 of HC 394 n1 the appellant's exclusion was "conductive to the public good". On his appeal to an adjudicator the evidence showed, inter alia, that the appellant was a post-graduate student of good character and not himself a drug taker; that he had brought the opium in for a friend who was a drug addict and who intended shortly coming to this country; that he knew he was acting unlawfully and had pleaded guilty to the offence in the Magistrates' Court and been fined @90. It was urged for him that his career as an architect would be ruined if he was not permitted to take the advanced diploma course in this country for which he had enrolled. The adjudicator dismissed his appeal. n1 The relevant provision of para 76 is set out on p 11, post. On his appeal to the Tribunal it was submitted for the appellant, inter alia, that when exercising their discretion to exclude a passenger immigration officers should have regard to the principles applied by the criminal courts when considering whether to recommend deportation of a convicted person, and that on such guidelines the appellant would not have been refused leave to enter. Held (dismissing the appeal): The appellant had properly been excluded under para 76 of HC 394 for the following reasons: (i) As a general rule it was "conductive to the public good" to refuse persons admission when they were attempting to import opium -- a hard drug and as such distinguishable from cannabis, and there were in the appellant's case no particular circumstances to justify a departure from that general rule; (ii) the appellant was aware of the risk he was taking and he took it with his eyes open; (iii) the principles to be observed by the criminal courts when deciding whether to recommend deportation of convicted persons had not been made applicable under the immigration rules to cases involving refusal of leave to enter; n2 this was no doubt because the effect of a deportation order was to prohibit the subject's return to this country, whereas a refusal of leave to enter did not necessarily have such a serious effect. n2 Paragraph 76 of HC 394 should be compared, inter alia, with para 141 in Part XI of HC 394. See also footnotes 3 & 4, post.

Counsel:

N. J. Blake, counsel for the appellant. H. A. Doherty for the respondent. PANEL: D. L. Neve Esq (President), Mrs. J. M. Abrahams, E. A. Lewis Esq

Judgment One:

THE TRIBUNAL

The appellant, Farzin Abdollah Khazrai, is a citizen of Iran, some 25 years of age. He arrived at Heathrow Airport on 17 June this year in possession of a "student" visa. He was initially admitted for 7 months as a student but upon subsequent examination by a Customs Officer he was found to be in possession of 3 grammes of opium. In consequence of this and having regard to para 76 of HC 394 the immigration officer considered it undesirable to give the appellant leave to enter and -- acting under the provisions of para 6(2) of sch 2 to the Immigration Act 1971, cancelled the leave which he had just been given and refused him leave to enter. He appealed to an adjudicator against this refusal and his appeal was heard by Mr C O Richards and was dismissed on 24 July. Against Mr Richards' determination the appellant now appeals to the Tribunal. When the appeal went before the adjudicator he heard evidence from the appellant and from a Mr Ripley. Their evidence is conveniently summarised by him in his determination in the following way: "At the hearing of the appeal the appellant and Mr Ripley gave evidence. The appellant stated that his father, who had retired from the Iranian Air Force, would be sending @450 per month to the United Kingdom for his support and that he had obtained permission from the Iranian authorities to do so. He had never used any drug. He had been asked by a friend who was a drug addict to bring the opium to the United Kingdom for the latter's use. His friend expected to travel to the United Kingdom shortly. He realised that it was against the law to bring drugs to the United Kingdom. Neither he nor his relatives, most of whom are university graduates, had ever been involved in criminal activities of any sort. He had pleaded guilty to the offence and he had paid the fine of @90. He had co-operated with the customs officials. His career would be ruined if he had to return to Iran without pursuing the course. He had achieved the highest qualifications in Architecture in Iran and needed the AA Diploma in order to practise internationally as an architect. In cross-examination he stated that he had known Mr Jelveh, who had asked him to transport the opium, for over four years and that Mr Jelveh was 'a college mate'. During this period Mr Jelveh had been using drugs. Mr Jelveh had put the parcel of opium in his luggage and he had told Mr Jelveh that he was scared. Mr Jelveh had told him that the authorities would not suspect that he, the appellant, would have drugs in his possession. He was aware that people who were implicated with drugs in Iran were imprisoned or shot. Mr Nicholas John Ripley said that he had met the appellant in Iran in May 1978. He had also met the appellant's parents there. He considered the appellant and his relatives to be all of good character and respectable middle class people." The appellant had been charged before the Magistrates at Uxbridge with the fraudulent evasion of the prohibition in force with respect to the importation of opium and, in view of this, the respondent before the adjudicator applied to amend the notice of refusal which had been served upon the appellant by adding details of his conviction and invoking para 74 of HC 394. The adjudicator -- properly in our view -- refused to allow this amendment and we are no longer concerned with it. He considered the appeal, as we considered it, solely in terms of para 76 of HC 394, the relevant provisions of which read as follows: "76. Any passenger... may be refused leave to enter on the ground that his exclusion is conducive to the public good where... (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 adjudicator, having considered the provisions of this rule and the evidence which had been given on behalf of the appellant, clearly considered that the immigration officer's refusal had been justified and dismissed the appeal. Upon the appeal coming before us Mr Blake, who had also represented the appellant before the adjudicator, submitted that the adjudicator's determination was somewhat summary and gave no reasons for the conclusion, which he had evidently reached, that the immigration officer's discretion had been correctly exercised. Mr Blake submitted that in any exercise of such discretion regard should be had to the same principles as those which applied in cases involving deportation. He referred us to the guidelines enunciated by the Court of Appeal, Criminal Division, in the case of R v Nazari and others n3. He also referred us in this connection to the case of R v The Secretary of State of the Home Department, Ex parte Santillo, reported in The Times of 23 July this year (1980) n4. He suggested that these guidelines were applicable to this case. n3 [1980] 3 All ER 880. Nazari's application for leave to appeal was heard with the applications of 3 other immigrants who had been sentenced in separate courts for a variety of offences, and all of whom had been recommended for deportation. Nazari was an Iranian student who, after pleading guilty to smuggling opium into the United Kingdom, was sentenced by the Crown Court in Reading to 4 years' imprisonment and recommended for deportation; it was submitted for him in the Court of Appeal, Criminal Division, p.882 that if he was sent back to Iran he faced the possibility of execution because, it was suggested, the Iranian government took a very serious view of drug smuggling; no evidence was given, however, that an Iranian court would assume jurisdiction in relation to smuggling drugs into the United Kingdom. In the course of indicating the 'guidelines' -- not 'rigid rules' -- which the criminal courts should keep in mind when deciding whether to recommend deportation the Court of Appeal said, inter alia, (pp 885, 886) that courts must consider whether the accused's continued presence in the United Kingdom would be detrimental to the country; and they should consider carefully the effect which a deportation order might have on innocent people such as an offender's family in this country -- courts would not wish to break up families or impose hardship on innocent people. The courts, however, were not concerned with the political systems operating in other countries: it was "for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consesequences which would make his compulsory return unduly harsh"; the Home Secretary had opportunities of informing himself about what was happening in other countries which the courts did not have, and the Home Office could do this at all relevant times; whether or not a regime might be unfavourable to the subject of a deportation recommendation would be a matter the Home Secretary would surely bear in mind when the time came for the offender's release from prison. n4 Santillo was an Italian citizen who had applied for an order to quash a deportation order made by the Secretary of State on the recommendation of a judge of the Central Criminal Court on Santillo's conviction of offences which included rape, for which he was sentenced to 8 years' imprisonment. In his judgment in the Divisional Court (with which Comyn J agreed) Donaldson LJ as reported in The Times, adverted to art 3 of EEC Council Directive 64/221/EEC and said, inter alia, that the existence of previous convictions was not of itself a basis for making a recommendation. The Times report continued: "That was not only the law in accordance with article 3, it was also only common sense and fairness. No one could reasonably recommend the deportation of a foreigner solely because he had a criminal record. If he were, or would upon release from prison be, completely rehabilitated, he would no longer be a threat to anyone. But the position was quite different if the court considered that the previous record of the accused, including the offence with which the court was directly concerned, rendered it likely that he would offend again. That possibility of offending was a very important factor in deciding whether to recommend deportation and taking account of it was permitted by the Council directive". In Santillo's case, however, His Lordship did not consider that there were any grounds for granting the relief sought. The judgments in Santillo's Case in the CJEC, the QBD and the CA, are reported in [1981] 2 All ER 897. The appellant, Mr Blake said, was a man of excellent character, an exceptionally promising student (a letter from the Architectural Association in Bedford Square has been produced to this effect), who comes from an eminently respectable family. He does not take drugs himself, and this was an isolated instance of behaviour which was quite out of character. The appellant wishes to obtain a qualification from the Architectural Association because, although he has the highest architectural qualification obtainable in Iran, this does not entitle him to practice internationally as an architect. If he is refused admission to the United Kingdom such refusal will ruin his career. Having regard to these matters we should exercise our discretion in his favour and allow the appeal. We do not accede to Mr Blake's submission that the principles to be observed by Criminal Courts in deciding whether to recommend deportation should be applied to cases involving the refusal of admission by immigration officers. The effect of a refusal of admission is different from the effect of a deportation order, because a deportation order prohibits the subject of it from returning to this country, whereas a refusal of admission does not necessarily have this effect. If the principles relating to the making of a deportation order (which are set out in Part XI of HC 394) were intended to apply in cases of refusal of admission it is reasonable to assume that the rules would say so. They do not. We have taken into account the matters favourable to the appellant which have been urged by Mr Blake, but it is evident from the appellant's own admission that he was aware of the risk which he was taking and took such risk with his eyes open. Opium is a 'hard' drug and its importation is in our view to be more gravely considered than that of cannabis, the importation of which has been the subject of several previous cases which have been cited to us. In our opinion, as a general rule, it is "conductive to the public good" to refuse persons admission when they are attempting to import opium into this country: and there are no particular circumstances in this case which would justify us from departing from the general rule. For these reasons we consider that the appeal was correctly dismissed by the adjudicator and this appeal to the Tribunal is also dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Beckman & Beckman, NWI.