Singh v. Secretary of State for the Home Department

SINGH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 76

Hearing Date: 1 October 1992

1 October 1992

Index Terms:

Leave to enter -- refusal -- applicant had left United Kingdom for the United States of America while appeal pending against earlier refusal of asylum -- forged passport detected on flight's arrival in Republic of Ireland -- applicant returned by airline to United Kingdom -- refused leave to enter -- - whether the applicant required leave to enter, returning within the Common Travel Area -- whether he was excluded from the provisions of the Act in relation to the Common Travel Area by article 3 of the Control of Entry through Ireland Order -- the meaning of "entered" in that Order. Immigration Act 1971 ss 1(3), 14: Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) arts 3(1)(a), 3(1)(b)(iii), 3(2): Immigration (Variation of Leave) Order 1976 para 3(2).

Held:

Renewed application for leave to move for judicial review, after refusal by Laws J. The applicant was a citizen of India. He had been given leave to enter the United Kingdom as a visitor for six months. During that period he had applied for political asylum. His application was refused. He appealed and accordingly was not required to leave the United Kingdom while the appeal was pending. He decided however to go to the United States. When his flight arrived at Shannon it was discovered that he was travelling on a forged passport. He was never granted leave to enter the Republic of Ireland but was returned to the United Kingdom on the first available plane. On arrival in the United Kingdom he was refused leave to enter. He again claimed political asylum and that was refused. He sought to challenge those refusals by way of judicial review. Counsel argued, inter alia, that the applicant did not require leave to enter; he relied on section 1(3) of the 1971 Act, and asserted that the applicant was not within those categories excluded from it by the provisions of the Immigration (Control of Entry through the Republic of Ireland) Order. Counsel accepted, following Subramaniam, that although the applicant was not required to leave the United Kingdom while his appeal was pending, that stay could not be equated with limited leave. He argued however that being refused permission to land in Ireland, the applicant could not be said to have "entered" the Republic of Ireland within the meaning of paragraph 3(1)(b)(iii) of the Order. Held 1. Following Subramaniam the applicant did not have limited leave to remain in the United Kingdom after his first application for asylum had been refused and the extension of leave under the Variation of Leave Order had expired: thereafter there was merely a stay of execution preventing his being removed from the United Kingdom while his appeal was pending. 2. The phrasing of article 3(1)(a) of the Immigration (Control of Entry through the Republic of Ireland) Order showed that "entered" as used in the Order did not mean "given leave to enter". 3. It followed that it was natural to construe "entered that Republic" in article 3(1)(b)(iii) of the Order as including a person who was physically there but was not given leave to land there. 4. The decision of the immigration officer to refuse the applicant leave to enter the United Kingdom was not Wednesbury unreasonable.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Subramaniam [1977] QB 190: [1977] Imm AR 155. R v Secretary of State for the Home Department ex parte Piara Singh (unreported, QBD, 29 September 1992).

Counsel:

S Kadri QC and M Gill for the applicant; R Jay for the respondent PANEL: Dillon, Russell, Rose LJJ

Judgment One:

DILLON LJ: Mr Kadri and Mr Gill renew in this court an application for leave to move for judicial review on behalf of Mr Piara Singh. The application was made in a Divisional Court before Laws J and was refused by him after an inter partes hearing on 29 September 1992. The basis of this application is to quash a decision made by an immigration officer at Heathrow Airport on 10 September 1992, refusing the applicant leave to enter the United Kingdom, and also a decision communicated to the applicant on behalf of the Secretary of State for the Home Department on the same date, 10 September, refusing the applicant's claim for political asylum. The entry referred to in the documents of 10 September was entry at Heathrow from Shannon in the Republic of Ireland on 9 May 1992. Until May 1992 the applicant's immigration history had been relatively straightforward. He is a Sikh and had been born in India in April 1948. He had worked on family land in India from when he grew up until 1976. He apparently worked in Kuwait as a bus driver from 1976 to 1984 but then returned to India. He was in India from 1984 until he went to work in Saudi Arabia in September 1987. He had obtained a passport in India in January 1986 but did not leave India until September 1987 since arrangements for his work and travel had to be made. When he was in Kuwait he applied for entry clearance to visit the United Kingdom and that was granted: leave to enter for six months. Pursuant to that leave he arrived in this country on 8 January 1990 and was duly admitted. During his six months he applied through an immigration counsellor, Mr Anisuddin, for political asylum by way of variation of his leave to enter and on the basis that he had a reasonable fear as a Sikh of persecution if he returned to India. He gave certain information in support of his fears which is not relevant for the purposes of this present application. He was interviewed in relation to his application for asylum and that application was refused on 18 March 1992. The refusal notice stated that "Under the Immigration (Variation of Leave) Order 1976, your stay has been extended to 28 days after the date of this notice". That is estimated to take the position to 15 April 1992. The notice also reminded Mr Singh of his right of appeal against the decision under section 14 of the Immigration Act 1971. That provides: "Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it; and a variation shall not take effect so long as an appeal is pending under this subsection against the variation, nor shall an appellant be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending under this subsection against a refusal, to enlarge or remove the limit on the duration of the leave.' It has been pointed out in argument by Mr Jay that in the case of Subramaniam [1977] QB 190 it was said that under the wording then currently used by the Home Office in its decision letters, the provision in section 14 that an appellant should not be required to leave the United Kingdom so long as the appeal was pending was analogous to a stay, as a common form of proceeding in the normal court structure when an appeal is pending, and was different from granting leave to remain, within the context of the immigration rules, until the appeal had been determined; it was merely a stay. The position at that stage was summed up in a letter of 27 April from the immigration department to Mr Singh's then advisers. This said: "The Secretary of State notes that Mr Singh has already lodged notice of appeal against his decision of 18 March 1992." -- that was lodged in time on 1 April 1992 -- "Under section 14(1) . . . Mr Singh is not required to leave the United Kingdom by reason of the expiration of his leave to enter so long as his appeal is pending against that decision." What happened, however, on 9 May was that Mr Singh attempted to travel to the United States from this country on a forged British passport. The forgery was detected when the plane got to Shannon in the Republic of Ireland. He was therefore not allowed to continue his journey and was returned to the United Kingdom on the first available plane. He was, on reaching the United Kingdom, refused entry on the ground that he had no right to enter this country. He then appealed against the refusal of entry and claimed asylum -- a renewed claim for asylum -- and those two matters, the application against the refusal of leave to enter and the claim for asylum, were rejected in the documents I have mentioned of 10 September. He has a right of appeal against those decisions, but only from a place abroad. He is not, by the mere fact of having a right of appeal against those decisions, entitled to remain in this country pending that appeal. He seeks judicial review of the decisions of 10 September primarily on the ground that he did not need leave to enter the United Kingdom when he came back from Ireland on 9 May. He refers to the provisions in section 1(3) of the Immigration Act 1971, which says that: "Arrival in and departure from the United Kingdom on a local journey from or to . . . the Channel Islands and Isle of Man or the Republic of Ireland shall not be subject to control under this Act, nor shall a person require leave to enter the United Kingdom on so arriving, except in so far as any of those places is for any purpose excluded from this subsection under the powers conferred by this Act; and in this Act the United Kingdom and those places, or such of them as are not so excluded, are collectively referred to as 'the common travel area'." There are, however, exceptions in relation to the common travel area, some of which are set out in the Immigration (Control of Entry through the Republic of Ireland) Order 1972. That provides by article 3(2) that: "In relation only to persons to whom this Article applies, the Republic of Ireland shall be excluded from section 1(3) of the Act (provisions relating to persons travelling on local journeys in the common travel area)." Article 3(1) therefore sets out various persons, and if Mr Singh is one of those persons then he cannot rely on section 1(3) of the Act and the provisions there relating to journeys from Ireland as part of the common travel area. There are two points that arise. The relevant provision, I think, though Mr Jay has sought to put it more widely, is paragraph 3(1)(b)(iii). That provides: "Any person . . . who arrives in the UK on a local journey from the Republic of Ireland if he satisfies any of the following conditions, that is to say:-

. . .

(iii) he entered that Republic from a place in the UK and Islands after entering there unlawfully," -- that is not this case -- "or, if he had a limited leave to enter or remain there, after the expiry of the leave, provided that in either case he has not subsequently been given leave to enter or remain in the UK or any of the Islands." The first point then is as to the limited leave. As I see it, because of the difference indicated in Subramaniam between the position of Mr Singh while his application to vary the conditions of his original entry was pending and his position after that application had been refused -- the first application for asylum had been refused on 18 March 1992 and the leave to remain had expired on 15 April 1992 -- because of the difference in his position, having thereafter merely a stay of execution which could prevent his being removed from the United Kingdom but gave him no right to remain in the United Kingdom, he is not a person for the purposes of 3(1)(b)(iii) who still had a leave to enter or remain in the United Kingdom which had not expired. Therefore he is a person in whose case the Republic of Ireland is excluded from section 1(3) of the Act. Mr Kadri does not wholly quarrel with that, but submits that in truth Mr Singh cannot be regarded as having entered the Republic of Ireland because he was refused permission to land there. That does not mean that he was somehow transferred in mid-air into a plane that flew him back to England. He did land physically, but was refused permission when the plane had reached the ground. As a matter of construction, Mr Kadri submits that such a person cannot be said to have entered the Republic, and he refers to authority in which a distinction is drawn between disembarkation and entry. (That distinction was considered in R v Yabu Naillie [1992] Imm AR 104). That was in a different context, however. Article 3(1)(a) of the Immigration (Control of Entry Through the Republic of Ireland) Order refers to a "person (other than a citizen of the Republic of Ireland) who arrives in the UK on an aircraft which began its flight in that Republic if he entered that Republic in the course of a journey to the UK which began outside the common travel area and was not given leave to land in that Republic in accordance with the law in force there". That does not in itself apply to Mr Singh because he did not begin his journey to the Republic in the course of a journey to the United Kingdom which began outside the common travel area, but it does show that for the purposes of paragraph 3 of the article a person is to be regarded as having entered the Republic even though under the local law he was not given leave to land there. So it is natural to construe entering the Republic in 3(1)(b)(iii) similarly as including a person who was physically there but was not given leave to land there. So I do not think that helps Mr Singh. Mr Jay submits that by departing from this country in the circumstances In which he did, even though he may have had no intention of doing so, Mr Singh abandoned his appeal against the refusal of asylum on 18 March 1992. It is accepted under the rules that an appeal may be withdrawn. Mr Kadri says it can only be withdrawn by a notice in writing and it cannot be abandoned. I do not find it necessary in this case to express a view on those contentions. Mr Kadri submits that Mr Singh is to be regarded as still in the United Kingdom, particularly I think because he is irremovable from the United Kingdom under section 14. But if he chooses to leave the United Kingdom it seems to me that he ceases to be irremovable. It is a question whether he has any right to come back. I do not find any assistance for Mr Kadri at that stage, nor do I accept the subordinate submissions which he made that it was unreasonable for the immigration officer to refuse re-admission when his attempt to get away from the United Kingdom to the United States had failed, or his point that the division of function between the Secretary of State and the Immigration Department on the one hand and the immigration officer at the airport on the other hand which the rules and the Act require was not satisfied by the procedure which was followed. I would refuse this application, while expressing my gratitude to both sides for their arguments.

Judgment Two:

RUSSELL LJ: I agree, and I also would refuse this application.

Judgment Three:

ROSE LJ: I also agree.

DISPOSITION:

Application refused.

SOLICITORS:

David Shine & Kharbanda, Southall; Treasury Solicitor