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Jamaldeen Muhammed Ashraf v. Immigration Appeal Tribunal

Publisher United Kingdom: Court of Appeal (England and Wales)
Author Court of Appeal (Civil Division)
Publication Date 16 December 1988
Citation / Document Symbol [1989] Imm AR 234
Cite as Jamaldeen Muhammed Ashraf v. Immigration Appeal Tribunal, [1989] Imm AR 234, United Kingdom: Court of Appeal (England and Wales), 16 December 1988, available at: http://www.refworld.org/docid/3ae6b65b0.html [accessed 23 April 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

JAMALDEEN MUHAMMED ASHRAF v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1989] Imm AR 234

Hearing Date: 16 December 1988

16 December 1988

Index Terms:

Appeals -- right of appeal -- appellant arrived with current transit visa -- sought leave to enter United Kingdom as visitor -- refused -- visa obtained through false representations -- immediately after refusal appellant applied for political asylum -- subsequently refused -- whether appellant had right of appeal while in United Kingdom against second refusal -- the meaning of "any immigration rules applicable to the case" in s 19(1)(a) of the 1971 Act -- the meaning of "currrent entry clearance" in paragraph 13 of HC 169. Immigration Act 1971 ss 4(1), 13(1), 13(3), 15(1), 16(1), 17(1), 18(1), 18(2), 19(1): HC 169 para 13(a).

Held:

Appeal from Webster J. The appellant was a citizen of Sri Lanka who arrived in the United Kingdom with a current visa issued in Colombo and endorsed "for journeys to the United Kingdom in direct transit to and from Iraq; Use by 22 January 1986." He sought leave to enter the United Kingdom as a visitor for a week while awaiting a flight to Baghdad: leave to enter was refused, the immigration officer concluding that false representations had been made to obtain the visa. After that notice of refusal had been handed to the appellant, he immediately applied for political asylum. That was later refused. On appeal against leave to enter as a visitor, the appellant also sought to appeal against the refusal of asylum. Both the adjudicator and the Immigration Appeal Tribunal held that he had no right of appeal while in the United Kingdom against that second refusal. An application for judicial review was refused. On appeal it was argued, relying on Chanda, that the appellant's visa remained current until its date of expiry and thus the appellant could rely on it to ground a right of appeal while in the United Kingdom against the second refusal (relating to political asylum) which had been made known to him on 25 November 1985. It was also argued that the jurisdiction of the appellate authorities to determine whether "the decision or action against which the appeal was brought was not in accordance with . . . any immigration rules applicable to the case" (s 19(1)(a) of the 1971 Act) was wide enough to embrace the issue of political asylum, despite the more limited wording of s 13(1) of the 1971 Act.

held:

1. Section 19(1)(a) of the 1971 Act could not, by a side wind extend the right of appeal given by section 13(1) of the Act. the ambit of an appeal under section 13(1) was determined by the ambit of the application for leave to enter against which refusal, the appeal was brought. "The case" in the context of section 19(1)(a) means no more than the phrase "the decision or action" used earlier in that section.

2. The decision of an immigration officer, pursuant to paragraph 13 of HC 169 that a visa or entry clearance had been obtained by false representations overgoes the clearance and thenceforward rendered it ineffective as a basis for entry: the subsequent refusal of leave founded the right of appeal to an adjudicator.

3. It must have been the intention of Parliament that the validity of the entry clearance would be notionally projected forward to the time when that refusal was given and the right of appeal arose. The entry clearance, for the purposes of section 13(3) of the 1971 Act remained current for such period as enabled the decision which rendered it invalid to be put in issue on an appeal.

4. But an entry clearance would not remain "current" until its date of expiry, when it was no longer "valid".

5. Thus the appellant's visa ceased to be current when the notice of refusal of leave to enter as a visitor was handed to him. It followed that he had no current entry clearance when he was refused political asylum. The two refusals could not be merged for the purposes of the appellate procedure.

6. A distinction had to be drawn between cases where there were two concurrent or consecutive applications, followed by one refusal (Chanda) and where there were two applications, the second subsequent to the refusal of the first application (the present case).

Cases referred to in the Judgment:

Chanda v Immigration Officer, Heathrow [1981] Imm AR 88 R v Immigration Appeal Tribunal ex parte Jamaldeen Muhammed Ashraf [1988] Imm AR 576.

Kent Tak Lok (Brief notes on these two cases are to be found in footnotes to the report of Chanda.) (unreported) (1911)

Nger Chung Kwan (unreported) (1929)

Hammoud (unreported) (3415)

Reslan (unreported) (3844)

Counsel:

I Macdonald QC for the appellant; R Jay for the respondent

PANEL: Purchas, Nourse LJJ, Sir Roualeyn Cumming-Bruce

Judgment One:

NOURSE LJ. This is an immigration case which raises a question as to the extent of the right of appeal to an adjudicator under s 13(1) of the Immigration Act 1971 and a further question as to the effect of s 13(3) of that Act. Both questions are of general importance in relation to appeals brought against the refusal of applications for leave to enter based on more than one ground.

The appellant applicant, Jamaldeen Muhammed Ashraf, is a citizen of Sri Lanka and subject to immigration control under the 1971 Act. On 22 October 1985 the British High Commission in Colombo issued him with a visa which was expressed to be "for journeys to the United Kingdom in direct transit to and from Iraq. Use by 22 January 1986." The effect of that visa was to give the applicant a clearance for entry into the United Kingdom for the purpose and until the date so specified. On 10 November 1985 he arrived at Gatwick and, in reliance on his visa, applied for leave to enter for one week's sightseeing while waiting for an onward flight to Baghdad. The immigration officer, having pointed out that the application was in conflict with the terms of a visa for "direct transit" and after making further inquiries of the applicant, sought further clarification by telex from the entry clearance officer in Colombo. The result was that on 13 November 1985 the applicant was refused leave to enter on a ground specified in paragraph 13(a) of HC 169, being handed a notice of refusal signed by the responsible immigration officer and expressed as follows:

"You hold a current visa endorsed 'direct transit' but I am satisfied that false representations were employed for the purposes of obtaining the visa. The visa is not, therefore, effective."

Directions were also given for the applicant's removal by air to Iraq on the following day.

Immediately after he had been issued with the notice of refusal the applicant told the immigration officer that he wished to make an application for political asylum; in other words, for leave to enter as a refugee. Before that no mention whatsoever had been made by the applicant about political asylum or of any troubles in Sri Lanka, nor indeed of any fear on his part of returning there. In accordance with paragraph 73 of HC 169 the application for asylum was duly referred to the Secretary of State for decision and, on his direction, it was refused by an immigration officer based at Harmondsworth on 25 November 1985. In accordance with the practice which was then in force, but which has since been discontinued, the notification of the decision to the applicant on that day was made orally and not by notice in writing, as would seem to have been required by s 4(1) of the 1971 Act. However, no objection has at any stage been taken by or on behalf of the applicant on account of the absence of such a notice or indeed of a separate explanatory statement relating to the asylum issue.

A second set of directions for the applicant's removal to Iraq was then given, but on 6 December 1985 he entered an appeal to an adjudictor, the practical result of which has been that he is still in the United Kingdom, more than three years later. The applicant's notice of appeal stated the particulars of the decision or action appealed against to be "Refusal of leave to enter." The grounds of appeal contained statements that the applicant had a well-founded fear of persecution in Sri Lanka and that the proposed removal to Iraq was contrary to the provisions of the Convention and Protocol relating to the Status of Refugees; and also an assertion that under s 13 of the 1971 Act the applicant had an appeal to the adjudicator in respect of the refusal to grant him recognition as a refugee and asylum in the United Kingdom. No reference was made to the ground on which the first application for leave to enter had been made, ie, as a visitor.

The applicant has throughout contended that he is entitled, on the appeal initiated by that notice of appeal, to question not only the refusal of his application for leave to enter as a visitor but also the refusal of his application for leave to enter as a refugee. That contention was rejected both by the adjudicator (Mr EJT Housden) and the Immigration Appeal Tribunal and subsequently by Webster J in proceedings seeking a judicial review of the decision of the Tribunal. From Webster J's decision the applicant now appeaels to this court. On the other hand, it has never been suggested that the applicant was not entitled to question the refusal of his application for leave to enter as a visitor. That matter has had a somewhat unsatisfactory history which need not be recounted, except to say that it is not clear whether the appellate process in regard to that refusal has yet been exhausted. I should, however, add that on 28 July 1986 Mr Housden dismissed the applicant's appeal under section 17 of the 1971 Act against the order directing his removal to Iraq.

The first question which has been argued on this appeal is whether the Immigration Appeal Tribunal were correct in holding that the applicant was unable to base his appeal to the adjudicator on the ground that he was a refugee as well as on the ground that he was a visitor. This question depends on the extent of the right of appeal given by s 13(1) of the 1971 Act, which is in these terms:

"Subject to the provisions of this Part of the Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal."

The Act makes no express reference to an application for leave to enter, but the reference in s 13(1) to a refusal of leave presupposes that an application has been made. It is obvious that such an application can only be made on a specified ground or grounds. It necessarily follows that the refusal, when made, is a refusal for leave to enter on that ground or grounds and that it is that refusal, and none other, against which the right of appeal is given. That view of s 13(1) provides the short, but nevertheless conclusive, answer to the first question in this case, where application for leave to enter was first made on the ground that the applicant was a visitor. It was not until after that application had been refused that application was made on the ground that he was a refugee. On that state of facts the appeal which the applicant was undoubtedly entitled to bring against the first refusal could be based only on the ground on which the first application was made and could not be based on that on which the second was made.

Although a decision of the first question can be rested on the terms of s 13(1) itself, confirmation is derived from other provisions of the 1971 Act, in particular ss 18(1) and (2) and 19(1). S 18(1) empowers the Secretary of State by regulations to provide:

"(a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of this Act . . .

(b) for any such notice to include a statement of the reasons for the decision or action . . . "

S 18(2) provides that for the purpose of proceedings under Part II of the Act a statement included in such a notice shall be conclusive of the person by whom and of the ground on which "any decision or action was taken". S 19(1)(a) provides that an adjudicator on an appeal to him under Part II shall allow the appeal if he considers:

"(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case."

. . .

All these provisions, expecially s 19(1)(a)(i), by referring to the "decision or action", confirm that it is against the particular decision or action, and against none other, that the right of appeal is given. Mr Macdonald for the applicant, submitted that the words "the case" which are found at the end of s 19(1)(a)(i) are wide enough to permit the adjudicator to consider the case as a whole, and thus to go beyond the ground or grounds on which an application for leave to enter was made by considering other grounds which have been raised in the course of the decision-making process as a whole. But I agree with Mr Jay, for the Tribunal, that those words are only a more stylish means of avoiding a repetition of the words "decision or action". They certainly cannot have the effect, as it were by a side wind, of extending the right of appeal given by s 13(1).

Mr Macdonald has relied on the fact that it was not until after both applications had been refused that the applicant entered his notice of appeal to the adjudicator. His submission in essence is that an appeal under s 13(1) can be based on any ground on which any unsuccessful application for leave to enter has previously been made. He sought to derive support for that submission from the fact that s 13(1), unlike s 15(1) as amended, s 16(1) and s 17(1) of the 1971 Act, does not specify the ground or grounds on which an appeal may be based. The explanation of that is simply that an application for leave to enter and any consequential appeal against its refusal can be based on any of a large number of different grounds. It would be pointless and impracticable, if not actually impossible, to specify them. Accordingly, the omission to specify grounds in s 13(1) does not lead to the result for which Mr Macdonald has contended.

For these reasons I agree with Webster J that the Tribunal's decision of the first question was correct. They thought, and I respectfully agree with them, that the ambit of an appeal under s 13(1) is determined by the ambit of the application for leave to enter against whose refusal the appeal is brought.

Once it has been held that an appeal against the refusal of leave to enter as a refugee can only be questioned on an appeal against the refusal of the second application, a second question arises. That question is whether that right of appeal is currently denied to the applicant by s 13(3) of the 1971 Act as amended, of which the material words are:

"a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance . . . "

The question depends on whether, at the time when the application for leave to enter as a refugee was refused, the applicant held a "current entry clearance". If he did not, he cannot, so long as he is in the United Kingdom, appeal against the refusal of that application.

Mr Macdonald has submitted that when the second application was refused on 25 November 1985, some two months before the expiry of the visa on 22 January 1986, the applicant still held a "current" entry clearance and that his right of appeal, having arisen on that day, is therefore not denied to him. A similar submission was made before the adjudicator, where it was based primarily on the decisions of the Immigration Appeal Tribunal in Chanda v Immigration Officer,

London (Heathrow) Airport [1981] Imm AR 88 and Reslan (3844). In rejecting the applicant's submission, the adjudicator distinguished Reslan and followed the Tribunal decision in Hammoud (3415). He also said that Chanda did not seem to him to take the matter any further. In affirming his decision, the Tribunal referred to both Hammoud and Reslan, but did not refer to Chanda except incidentally in the course of a quotation from Reslan.

In this court neither side has referred to Hammoud or Reslan. Mr Macdonald's submissions on the second question were based solely on Chanda, a decision which requires careful consideration and analysis.

Mr Noble Chanda was a citizen of Zambia who arrived in this country in possession of a "student" entry clearance. The immigration officer who interviewed him on arrival decided that he had obtained that entry clearance by the non-disclosure of material facts and accordingly, under paragraph 13(a) of what was then HC 394, that his clearance was ineffective to qualify him for admission. The statement of facts continues at [1981] Imm AR 88:

"The IO then went on to decide, on a consideration of para 22 of HC 394, that the appellant did not qualify for entry as a student because he (the IO) was not satisfied that the appellant would leave the United Kingdom on completion of his studies. On appeal from the (semble, double) refusal of leave to enter . . . "

The version found in the reserved determination of the Tribunal at [1981] Imm Ar 90 is as follows:

"[The immigration officer] also decided that he did not qualify for entry as a student on a different course from that presented to the entry clearance officer because he (the immigration officer) was not satisfied that he would leave the United Kingdom on completion of his studies. He refused him admission. The appellant appealed to an adjudicator against the refusal . . . "

Those are the only two passages in the report of Chanda which throw light on the order of events which occurred in that case. Reading them together, I am in no doubt that there were two consecutive decisions and only one refusal of leave to enter, namely one given and notified to Mr Chanda, presumably in writing, after the immigration officer had made his second decision.

The adjudicator dismissed Mr Chanda's appeal against the refusal to admit him by virtue of his entry clearance, but, following two earlier decisions of the Tribunal as to the effect of the material words in s 13(3), he held that he had no jurisdiction, while Mr Chanda was still in this country, to entertain his appeal against the decision that he did not qualify for entry as a student. In other words, he held that the result of the immigration officer's decision that the entry clearance was ineffective was to render it no longer "current" for the purposes of s 13(3).

The Immigration Appeal Tribunal which heard Mr Chanda's appeal from the decision of the adjudicator was specially constituted, consisting of the President, Mr DL Neve, and two Vice-Presidents, Mr PN Dalton and Mr A Hooton. They described the question as a vexed one, observing that unfortunately no occasion had arisen for testing the correctness of the two earlier decisions in the High Court. On behalf of Mr Chanda it had been submitted by Mr McGeachy of the United Kingdom Immigrants Advisory Service that the expression "current entry clearance" meant current in "time", ie, for the period, usually six months, for which it could be used; and that the expression ought not to be construed to mean "valid entry clearance". Having considered these and the rival submissions, the Tribunal came to the conclusion that they had been in error in deciding the two earlier cases in the way that they did. At [1981] Imm AR 92, they continued:

"In our reconsidered judgment a person who has been refused admission at a port of entry 'at a time when he held a current entry clearance' (and we agree with Mr McGeachy's suggested construction of the word 'current') has a right of appeal in this country against refusal, for any reason, to admit him, notwithstanding the fact that the immigration officer has found his current clearance to be ineffective."

Basing himself on the reasoning of the Tribunal in Chanda, in particular on their construction of the word "current", Mr Macdonald has submitted that the applicant's visa in the present case was still current for the purposes of s 13(3) when the second application was made, notwithstanding that the refusal of the first application had rendered it ineffective. As to that submission, it cannot be doubted that the Tribunal did draw a distinction between the currency and the validity of an entry clearance and, moreover, that by adopting Mr McGeachy's suggested construction they did express the view that a clearance remains current until its date of expiry even when it is no longer valid. On the other side it has been argued by Mr Jay that a clearance which is no longer valid cannot be current and, moreover, that the actual decision in Chanda, which he informed us on instructions has always been accepted by the Secretary of State as being correct on its own facts, can be justified on a narrower construction of s 13(3).

Paragraph 13(a) of HC 169 is in these terms:

"13. 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 . . . "

It follows from the terms of that provision that if the immigration officer is satisfied that false representations were employed, leave to enter may be refused. But a distinction must be drawn between the decision that false representations were employed and the refusal of leave to enter to which it may lead. It is the decision which overgoes the clearance and thenceforward renders it ineffective as a basis for entry. It is the refusal of leave to enter which founds the right of appeal to the adjudicator. This distinction has the consequence that if between the decision and the refusal another adverse decision is made, the second decision can just as much be questioned on an appeal against the refusal as can the first. It has the further consequence that at the time when the second decision is made and the refusal of leave to enter is given the applicant does not hold a valid entry clearance.

It is this further consequence which causes the difficulty in cases such as Chanda, where there are two consecutive adverse decisions followed by one refusal of leave to enter. On the assumption that an entry clearance which is not valid cannot be "current", a literal interpretation of s 13(3) disentitles the applicant from bringing an appeal, even in respect of the first decision, so long as he is in the United Kingdom. That is because he is "refused leave . . . at a time when he [does not hold] a current entry clearance". But I do not think that this literal interpretation can be correct. The first of the two matters with which the appeal will be concerned is the correctness of the immigration officer's decision that false representations were employed. If the appeal succeeds on that point, the validity of the entry clearance will be restored. It will be just like a case where there has been only one decision followed by a refusal. Viewing the matter in that way, I do not believe that Parliament can have intended that an appellant should have to leave the country simply because the entry clearance was not valid during the period between the first decision and the refusal of leave. I think that it would more accord with their probable intentions to hold that the validity of the entry clearance is notionally projected to the time when the refusal is given and the right of appeal arises. To put in in another way, the entry clearance remains current for the purposes of s 13(3) for such period as enables the decision which renders it invalid to be put in issue on an appeal.

It is by this route that I would affirm the correctness of the decision in Chanda. I cannot share the view there expressed that an entry clearance remains current until its date of expiry even when it is no longer valid. In my respectful opinion it is impossible, without a special context, to describe as current a permission which has been determined, more especially when a refusal of leave to enter, partly based on its determination, has demonstrated that it can no longer be relied on. A thing which is current is a thing which is running. A tap turned off no longer runs.

By the same process of reasoning, the latest moment at which the applicant's entry clearance ceased to be current in the present case was when the notice of the refusal of his application for leave to enter as a visitor was handed to him on 13 November 1985. It was not until after that that he told the immigration officer that he wished to apply for leave to enter as a refugee, so that that application cannot have been covered by the first refusal of leave. Accordingly, when the second application was refused on 25 November 1985, the applicant did not hold a current entry clearance and his appeal against that refusal is caught by the material words of s 13(3).

For these reasons, which are somewhat narrower than those relied on by the Immigration Appeal Tribunal and Webster J, I conclude that the Tribunal's decision of the second question was also correct. It is to be hoped that our decision will now establish settled rules in entry clearance cases (1) where there are consecutive, or indeed concurrent, adverse decisions followed by one refusal of leave to enter (the Chanda type of case) and (2) where there is a refusal of an application for leave to enter followed by a separate refusal of a further application (the Ashraf type of case).

I would dismiss this appeal.

Judgment Two:

SIR ROUALEYN CUMMING-BRUCE. I have had the advantage of reading in draft the judgments prepared by my Lords. I agree with them and for the reasons given would dismiss this appeal.

Judgment Three:

PURCHAS LJ. I agree. In view of the importance of this appeal and its impact upon the decision of the Immigration Appeal Tribunal in Chanda v Immigration Officer London (Heathrow Airport) [1981] Imm AR 88, I propose to add a few words of my own. The circumstances under which the appellant appeals to this court have ben fully set out in the judgment of Nourse LJ and need not be repeated here. In the case of foreigners and citizens from certain Commonwealth countries ("visa nationals") the first stage in the process of gaining admission to the United Kingdom is the application for a visa or entry clearance in the country of departure. The requirement for entry clearance became mandatory in the case of visa nationals under the rules in 1980 (HC 394) and has been continued and extended in scope by the current rules (HC 503 of 1985). The rules relating to entry clearance, therefore, restrict the discretion vested in the immigration officer at the port of entry but the power to give or refuse leave to enter is still exercised by him under s 4(1) of the Immigration Act 1971.

As has already been indicated, the possession or otherwise of an entry clearance affects the right of appeal against a refusal by the immigration officer to grant leave to enter the United Kingdom under s 13(1). In the case of visa nationals holding a current entry clearance they are excused from the provision of s 13(3) requiring appellants against refusal of leave to be outside the United Kingdom when appealing. Visa nationals, therefore, who are refused leave at a port of entry when they hold a current entry clearance may appeal against that refusal within the appellate system provided by the 1971 Act without leaving the United Kingdom first. This is a clearly defined and specific exclusion from the general provision in s 13(3).

The central question which has caused the difficulty in Chanda's case and that of the two previous cases considered by the Tribunal in arriving at this determination, namely Kent Tak Lok (1911) and Ngen Chung Kwan (1929), is: what is the impact of the fact that the entry clearance was obtained by the making of false representations or by the withholding of material facts so as to bring into play HC 169 of 1983, rule 13(a)? That rule provides that entry shall not be refused to a visa national holding an entry clearance unless, inter alia, it was obtained in circumstances described in sub-paragraph (a). Thus the basis upon which the immigration officer refused leave to enter in Ashraf's case was that he was satisfied that the exception provided by paragraph 13(a) of HC 169 had been established.

S 13(1) of the 1971 Act provides a right to appeal to an adjudicator against the refusal. In the circumstances prevailing in this case, that right of appeal is circumscribed by a proviso which applies to visa nationals which itself is subject to an exception. The right of appeal in the case of a visa national cannot be pursued whilst the appellant is in the United Kingdom unless he was refused leave at a point of entry at a time when he held a current entry clearance. Bearing in mind the grounds upon which the immigration officer refused leave to enter, the right of appeal under s 13(1) must embrace a right to challenge the immigration officer's view of the position qua HC 169, rule 13(a). The validity or otherwise of the entry clearance goes directly to the right in the immigration officer to refuse entry under s 4(1). It would, therefore, be a denial of the proviso to s 13(3) which itself allows the appeal to be brought by someone in the United Kingdom if the result of the appeal was assumed before the appeal was heard. For the purposes of the appeal, therefore, against the refusal of leave to enter the entry clearance is assumed to be valid and current until determined by that appeal to be otherwise.

In their review of the two earlier cases, the Tribunal in Chanda considered them in these terms:

"The cases of Kent Tak Lok and Kwan were decided on the basis that when it was found that entry clerance had been vitiated by misrepresentation or otherwise it was as if no such entry clearance had ever existed; thus a passenger arriving with such entry clearance should not enjoy an advantage (the right of appeal whilst in this country) over a passenger arriving without entry clearance."

The Tribunal after considering the submissions of counsel came to the conclusion that they had been in error when deciding the two earlier cases:

"In our reconsidered judgment a person who has been refused admission at a port of entry 'at a time when he held a current entry clearance' (and we agree with Mr McGeachy's suggested construction of the word 'current') has a right of appeal in this country against refusal for any reason to admit him notwithstanding the fact that the immigration officer has found his current clearance to be ineffective."

Mr McGeachy's construction of the word "current" was that it meant current in time. An entry clearance was usually issued for use within six months and during these six months it was "current": "current entry clearance should not be construed to mean valid entry clearance".

For the reasons I have just given, I agree with the Tribunal's reconsidered opinion that it was wrong in the two earlier cases to hold the view "that it was as if no such entry clearance had ever existed" unless account is taken of the position of an appeal under s 13(1) and (3) and s 20(1). I regret, however that I cannot agree with the Tribunal in their unqualified acceptance of Mr McGeachy's construction of the word "current" in s 13(3). The concept that an entry clearance which had been obtained through misrepresentation or non-disclosure remaining effective after the final determination in the appellate process of the fact of misrepresentation or non-disclosure is offensive to my mind in the context of this legislation. The purpose of the proviso to s 13(3) was to afford an advantage to a person who has genuinely complied in the country of departure with the first stage of an application for leave to enter. The purpose of this procedure is to facilitate matters on his arrival at the port of entry. To this exent I have sympathy with the comment in the last sentence of the Tribunal's summary of the two earlier cases. I accept that the point of time at which the currency of the entry clearance is critical is the refusal of leave to enter at the port of entry. This falls fairly within the words of s 13(3). In order to test the validity of the refusal in the ordinary appellate process provided by the 1971 Act, as I have already indicated in this judgment the validity of the entry clearance must be assumed. It must, however, be inherent from the purpose of the assumption of validity that it must be confined strictly to the process of reviewing in the appellate processes that very validity as being the foundation of the attack on the refusal of leave to enter by the immigration officer.

In this case, however, the refusal of leave to enter as a refugee was made by the immigration officer on directions from the Secretary of State on a different and subsequent occasion from the refusal based on HC 169, rule 13(a). The relief from the requirement of absence from the United Kingdom under s 13(3) applied only to an appeal from the earlier refusal of leave to enter. The refusal of leave to enter as a refugee was not the subject matter of the appellate process although the grounds of the appeal against the refusal based upon the misrepresentation or non-disclosure were more appropriate to the refusal of leave to enter as a refugee. The two refusals cannot be merged for the purposes of the appellate procedure and for these reasons I agree with Webster J in holding that the Tribunal was correct in refusing to entertain as part of the material in support of the appeal on the refusal of leave to enter of 13 November 1985 the matters which arose on the application for leave to enter as a refugee.

In coming to this conclusion, like Webster J, I am conscious of the anomalous position which might have arisen if the appellant had applied for leave to enter as a refugee either on arrival or at some time before he received the formal refusal of 13 November 1985 and there had been one refusal to both applications. It was conceded in argument before us that in these circumstances the appellant would have been entitled to appeal against the refusal of leave to enter as a refugee whilst still in the United Kingdom. I do not find it necessary to comment on this concession. For the present purposes, since there were two separate refusals, the application for leave to enter as a refugee having been made subsequently to the formal notice being given of the first refusal, this problem does not arise. The currency of the entry clearance being extended solely for appellate purposes arising out of the first refusal can have no relevance to the second refusal or any appeal therefrom.

For these reasons and for those that have already been given by Nourse LJ, I agree that this appeal must be dismissed.

DISPOSITION:

Appeal dismissed; Leave to appeal to the House of Lords refused

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor

Copyright notice: Crown Copyright

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