R v. Secretary of State for the Home Department, Ex parte Nwosu

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte NWOSU

Queen's Bench Division

[1993] Imm AR 206

Hearing Date: 8 October 1992

8 October 1992

Index Terms:

Illegal entrant -- application to move for judicial review of decision that applicant was an illegal entrant -- given leave to enter United Kingdom as seaman -- no engagement with shipping company as asserted -- did not join crew -- no evidence to support claim he had subsequently been granted leave to enter in another capacity -- whether applicant had arguable case -- whether leave to move should be granted. Immigration Act 1971 (as amended) sch 2 para 12(1).

Judicial review -- obligation on representatives to act promptly -- duty of representatives to place all relevant material before the court -- obligation extended to relevant documents coming into existence after application for judicial review had been lodged with the court.

Held:

The applicant seeking leave to move for judicial review was a citizen of Nigeria. He had been given leave to enter the United Kingdom as a seaman. It subsequently came to light that he had never joined the ship and at the material date had not been under contract to the shipping company. The Secretary of State concluded he had secured leave to enter by deception and treated him as an illegal entrant. On application for leave to move for judicial review which was made belatedly, it was asserted that the applicant had subsequently been granted leave to enter on the basis of a multiple visit visa: he could not however demonstrate that because his passport was held by the police, which was denied. Only at the inter partes hearing was full documentation put before the court, the respondent providing letters sent to the applicant's instructing solicitors, before and after the application to move for judicial review had been lodged. Held 1. Following ex parte Tadimi the applicant had to show, at the stage when leave to move was sought, that he had an arguable case. That the applicant had failed to do and the application would be refused. 2. The representatives of an applicant had an obligation to lodge an application for judicial review expeditiously. 3. The representatives of an applicant had also a duty to put before the court at the earliest opportunity all material documents, and that duty extended to documents which came into existence after the application for leave to move for judicial review had been lodged with the court.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Mohammed Tadimi (unreported, QBD, 16 July 1992). Mohammed Tadimi v Secretary of State for the Home Department (CA) [1993] Imm AR 90.

Counsel:

MB O'Maoileoin for the applicant; R Singh for the respondent PANEL: Brooke J

Judgment One:

BROOKE J: This is an application by Obinna Calestine Nwosu for leave to apply for judicial review in relation to a decision by an immigration officer on 23 August 1991 authorizing his detention as an illegal entrant. The history of the matter is that the applicant was arrested last year on charges relating to dangerous drugs. He was granted bail in July 1991, but he was unable to provide the surety required by the magistrates and he was therefore detained in prison. Charges were subsequently dropped but he has been detained in prison ever since, pending his deportation as an illegal entrant. Although the relevant decision was taken on 23 August 1991 he did not apply to this court until June 1992. It is quite clear that when he came to his present solicitors in about May they acted extremely promptly. There has, however, been no explanation at all for the delay between August last year and May of this year, despite the direction of Schiemann J when he handled this as a paper application that reasons should be given for the delay. Nevertheless, if the application had merit otherwise, I would not necessarily regard the delay as insuperable. The next problem is that there is unquestionably a duty on those who apply for leave in these cases to put all material facts known to them before the court. There had been correspondence passing between the previous solicitors and the Home Office and then on 25 June 1992 an important letter was written by the Home Office to the applicant's present solicitors setting out its attitude on this matter. None of those letters was placed before the court and I must repeat what I said during counsels' arguments. It is of very great importance that all the contentions which are being made by the other side should be placed by the applicant's solicitors before the court, even if they are received after the application for leave is lodged. The applicant's solicitors are under a duty to make full disclosure so that the judges in this division who handle these paper applications in the first place ex parte can see both sides of the argument. One does not then have the danger that they may grant leave ex parte without having seen what the other side is saying. If they do so, this may lead to the delay and expense involved in an inter partes hearing, whereas, if they had seen all the relevant correspondence earlier, they might have taken a different view at the outset. The third point taken by Mr Rabinder Singh who has appeared for the Crown is that the applicant has to show that he has an arguable case. He has shown me a recent unreported decision of Rose J (as he then was) in R v Secretary of State for the Home Department ex parte Mohammed Tadimi on 16 July 1992 in which Rose J, whose decision has recently been upheld by the Court of Appeal, said that the question he had to answer at this stage was: is it arguable on behalf of the applicant that it can be shown that the immigration officer was wrong? The Home Office have helpfully placed before me a large bundle of documents which show what the material was before the immigration officer when he took his decision. All of it was set out in the letter of 25 June 1992. Home Office records showed that the applicant was granted leave to enter in September 1988, having fled from Nigeria. He told the examining immigration officer that he was travelling to Liverpool to join a ship, but subsequent checks revealed that he had failed to do so. Moreover, the shipping company confirmed that they had not employed him since 1985 and were not expecting him to join that ship in any event. Mr Nwosu was first interviewed about his immigration status in August 1991. He was inconsistent and vague when questioned. He claimed that he had travelled to the United Kingdom in 1988 to join his family, having first gained admission in 1987 to join a ship. When he was confronted with the record of his arrival in 1988 he changed his story. He was served with notice of illegal entry since there was clear evidence that he had gained entry in September 1988 by material deception of the examining immigration officer. Had the immigration officer known that he did not have a contract to join a ship, as claimed, he would have been bound to refuse him leave to enter. The applicant was interviewed again in December 1991. He claimed that he had travelled to and from the United Kingdom on two or three occasions since September 1988, after having obtained a multiple visit visa in Lagos in 1990. Home Office records do not support his claim and he produced no evidence of his movements. He claimed that his passport was held by police. The Home Office inquiries, however, revealed that the police officers who were responsible for dealing with the criminal charges brought against Mr Nwosu had no record of ever seeing his passport and the entry clearance officer in Lagos could find no trace of any visa application from him. As it stands, there is only the evidence of his illegal entry by deception in September 1988. In what are said to be detailed instructions taken by a clerk in the applicant's solicitors' office which have not as such been confirmed on oath by the applicant, the applicant gives a record of having been given a multiple entry visa to the United Kingdom by the British High Commission in Nigeria, being given leave to enter in August 1988, and making subsequent returns to Nigeria and receiving leave to re-enter each time. He alleges that the police are in possession of his passport which would show the facts. I am satisfied that the Home Office have produced evidence to make it clear that the applicant's case is not properly arguable within the meaning of the decision of Rose J. If applicants could get passed the leave stage simply by saying, "Our passport would show the true facts and the police have taken the passport so that we cannot prove our case", then, if that was all, it might be that the court would look at the matter with some sympathy; but here there is very considerable prima facie evidence that the applicant has been deceiving the authorities, and thorough checks on what he has said have failed to confirm what he says about any material matters. In my judgment this case is not arguable and I dismiss the application for leave.

DISPOSITION:

Application refused

SOLICITORS:

Raja and Co, London SW 17; Treasury Solicitor

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