R v. Secretary of State for the Home Department, Ex parte Maxwell Chikwendu Nwanurue
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MAXWELL CHIKWENDU NWANURUE
Queen's Bench Division
 Imm AR 39
Hearing Date: 12 June 1991
12 June 1991
Illegal entrant -- leave to enter sought and granted as visitor -- immigration officer later concluded applicant always had had intention to study -- whether conclusion that applicant had secured leave to enter by deception justified -- whether what the applicant had told the immigration officer showed that on entry he had no more than a mere contemplation of studying. Immigration Act 1971 ss 3(1)(b), 3(1)(c), 3(3)(a), 26(1)(c), 33(1).
Illegal entrant -- removal -- whether the powers of removal contained in the second schedule to the 1971 Act could only be exercised in relation to persons not given leave to enter -- whether a person who had been given leave to enter and subsequently was held to be an illegal entrant could only be removed from the United Kingdom by way of a deportation order. Immigration Act 1971 ss 3(5), 5(1), 14(1), sch 2 paras 8, 9.
Illegal entrant -- leave to enter secured by deception -- subsequent application for variation of leave refused before applicant identified as illegal entrant -- appeal lodged but not heard by date Secretary of State decided to remove applicant from United Kingdom -- whether applicant had a legitimate expectation that he would be permitted to remain to pursue his appeal. Immigration Act 1971 s 14(1).
Illegal entrant -- estoppel -- whether when applicant had sought variation of leave Secretary of State would in the circumstances have become aware that applicant had entered by deception -- Secretary of State took no action against applicant at that time -- whether estoppel from subsequently treating applicant as an illegal entrant.
Held: The applicant for judicial review was a citizen of Nigeria. He had sought leave to enter and had been admitted to the United Kingdom as a visitor. He had then applied for variation of leave as a student at the Academic College of Education. His application was refused. He lodged an appeal. Before that appeal was heard by an adjudicator he was arrested for a minor offence. No charge was brought in that regard, but while detained by the police he was interviewed by an immigration officer. On the basis of his replies during that interview, the immigration officer concluded that the applicant had always intended to study in the United Kingdom. He had therefore secured leave to enter as a visitor by deception. He was therefore an illegal entrant: arrangements were put in train to remove him from the United Kingdom under the powers contained in the second schedule to the 1971 Act. Before the court it was submitted that the applicant was not an illegal entrant. It had not been shown to the requisite high standard, following Khawaja, that the applicant had secured leave to enter by deception. What he had told the immigration officer in the interview after his arrest showed no more than "a mere contemplation of studying", when he was granted leave to enter. Counsel also argued that the Secretary of State had no power to remove the applicant from the United Kingdom under paragraph 9 of the second schedule to the 1971 Act. That power, he asserted had no relevance to a person granted leave to enter and subsequently found to be an illegal entrant: it related only to those who had never been granted leave. The applicant, having been granted leave, could only be removed by way of a deportation order. It was also argued that the applicant, in the events which had happened, had had a legitimate expectation that he would be permitted to remain in the United Kingdom to have his appeal against a refusal to vary his leave heard and determined. Counsel also argued that when the Secretary of State had refused the applicant variation of leave, he had known that the educational establishment which the applicant sought to attend did not satisfy the requirements of the rules. At the date of refusal the Secretary of State had -- or should have -- known that the applicant was, in the circumstances an illegal entrant. He took no action at that time and was estopped from doing so at a later date. Held: 1. On the facts, the Secretary of State had proved to the requisite high standard in Khawaja, that the applicant had secured leave to enter by deception: it could not be argued that the applicant had shown no more than mere contemplation of studying. 2. It was incorrect to suggest that the judgment in Patel had undermined the reasoning in Khawaja and Lapinid. The consequences of Patel was no more than to confirm that an illegal entrant could be removed either under the powers in paragraph 9 of the second schedule to the 1971 Act, or by way of a deportation order pursuant to s 3(5)(b) of the Act. 3. There was no evidence to suggest that the Secretary of State knew, or had reason to know that the applicant was an illegal entrant when his application for variation of leave was refused. The Secretary of State was not estopped from treating the applicant subsequently as an illegal entrant. 4. Following Lapinid the applicant as an illegal entrant had no legitimate expectation that he would be permitted to remain in the United Kingdom to pursue his appeal against the refusal to vary his leave to remain in the United Kingdom.
Cases referred to in the Judgment: Zamir v Secretary of State for the Home Department  AC 930;  Imm AR 203. R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd  AC 617:  2 All ER 93. R v Secretary of State for the Home Department ex parte Lapinid  Imm AR 101. R v Secretary of State for the Home Department ex parte Khawaja  AC 74:  Imm AR 139. in re Preston  AC 835:  2 All ER 327. R v Secretary of State for the Home Department ex parte Ruddock  1 WLR 1482:  2 All ER 518. R v Immigration Appeal Tribunal ex parte Anilkumar Patel  AC 910:  Imm AR 434. Adeniya Adesina v Secretary of State for the Home Department  Imm AR 442. Adetutu Olonoluyi v Secretary of State for the Home Department  Imm AR 135. R v Secretary of State for the Home Department ex parte Sylvester Brakwah  Imm AR 366. Secretary of State for the Home Department v Abu Mowla  Imm AR 210.
Counsel: A Riza QC for the applicant; P Havers for the respondent PANEL: Auld J
Judgment One: AULD J: This is an application by Maxwell Chikwendu Nwanurue to quash the decision of Helen Barclay Hutcheson, an immigration officer, made on 15 September 1989 declaring him to be an illegal entrant. The effect of that decision, if valid, is to enable the immigration officer to give directions for his removal from the country under paragraph 9 of schedule 2 to the Immigration Act 1971. It is claimed by the immigration officer that the applicant originally obtained leave to enter the United Kingdom by fraud, that is representing himself as visiting for only a few days, when in truth he came here to study. The circumstances giving rise to the application are as follows. The applicant is a citizen of Nigeria and is now aged 30, his date of birth being 3 January 1961. On 22 September 1988 he travelled from Nigeria to the United Kingdom. On arrival at Heathrow Airport he was given limited and conditional leave to enter under sections 3(1)(b) and (c) of the 1971 Act, that is to say, for six months on condition that he did not undertake any employment or engage in any business or profession here. He had not sought leave to stay for so long. He had obtained a visa in Lagos for a single visit to the United Kingdom. The immigration officer who made out his landing card at Heathrow noted on the reverse of it that the applicant told him that it was his first visit to the United Kingdom, that he wished to enter the country for five days to collect a costume for his sister who was a singer in Nigeria, that the costume had been ordered by his sister and that he was travelling with his sister's boyfriend, who was a frequent visitor to the United Kingdom and who would stay in the country longer than the applicant. He had with him @2,500 in travellers' cheques. Just under four months later, on 11 January 1989, the applicant applied under section 3(3)(a) of the 1971 Act for the terms of leave to be varied so as to enable him to remain here for four years as a student of accounting at an institution called the Academic College of Education. By letters dated 20th April 1989 the Immigration and Nationality Department of the Home Office asked the applicant and the college for further information. Among the questions asked of the applicant were what was the original purpose of his visit to the United Kingdom and why he had not applied for a student visa to study here. Mr Riza, counsel for the applicant, suggested in his submissions to me that such questions indicated suspicion by the Secretary of State that the applicant was an illegal entrant. I do not read them that way. Faced with an application which, on the face of it, was a change of mind, the Secretary of State would quite naturally wish to examine it in the light of the applicant's intention on entry to the country. On 11 May 1989 the college wrote to the Immigration and Nationality Department giving details of the course attended by the applicant and indicating a record of regular attendance by him. I have not seen any reply by the applicant to the questions asked of him. On 26 May 1989 an official of the Immigration and Nationality Department wrote on behalf of the Secretary of State for the Home Department to the applicant refusing to vary the terms of leave to enter under section 3(3)(a) of the 1971 Act, informing him that his leave to remain had been extended to 23 June 1989 under the automatic provisions of the Immigration (Variation of Leave) Order 1976, and notifying him of his right of appeal to an adjudicator under section 14(1) of the 1971 Act. The reasons given on behalf of the Secretary of State for his refusal to vary the terms of the applicant's leave to enter were as follows: "You have applied for an extension of stay to study at the Academic College of Education, but the Secretary of State is not satisfied that you are in regular attendance on a full-time course of study that meets the requirements for admission as a student, or that you intend to leave the United Kingdom on completion of your studies". Interrupting the narrative for a moment, Mr Riza submitted that these reasons indicate that the Secretary of State knew that the college was not a genuine educational institution and, by virtue of that fact, knew or ought to have known that the applicant had obtained entry by deception. He made that submission in support of one of his grounds of application to which I shall come, namely, that the Secretary of State, knowing, or being put on enquiry, in May 1989 of the applicant's deception on entry, chose not to deal with him as an illegal entrant and thus barred himself and his officials from later treating him as such. In my judgment, that submission is ill-founded in at least two important respects. First, even if the Secretary of State were of the view in May 1989 that the Academic College of Education was not a genuine establishment, he could not logically conclude from that fact that the applicant had entered the country four months before with the intention of studying here and had thus deceived the immigration officers who had given him the limited leave to enter. Second, if the Secretary of State had concluded in May 1989 that the applicant's claim to be a student was not genuine, it would similarly not have been a basis for his concluding that the applicant had originally entered the country intending to study here. I return to the narrative. On 31 May 1989 the applicant appealed under section 14(1) of the 1971 Act against the refusal under section 3(3)(a) of the Act to vary the terms of his limited leave of entry. His grounds of appeal were that the decision was unfair and not in accordance with the law because he was a full-time student. By letter of 12 June 1989 the Immigration and Nationality Department wrote to the Academic College of Education indicating the receipt of the notice of appeal and its intention to comply with the appropriate procedure for an appeal under section 14(1) of the Act. It also indicated, in accordance with that provision, that the applicant would not be required to leave the United Kingdom so long as the appeal was pending. The relevant passage in section 14(1) reads as follows (emphasis added): ". . . 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". The applicant's appeal against the refusal to vary his terms of leave to enter has not been heard. It appears from the applicant's own account later to the immigration officer on 15 September 1989 and from his affidavit evidence on this application that in about August 1989, on advice, he abandoned the Academic College of Education and enrolled as a student at the Emile Woolf College. On 16 August 1989 the registrar of that college wrote to the Immigration and Nationality Department confirming the fact of his enrolment on a three-months course starting on 4 September 1989 leading to the December 1989 examinations of the Chartered Association of Certified Accountants. The next and last thing to happen in this story so far is that, on 15 September 1989, the applicant was arrested by the police in Harrow for allegedly travelling on the underground with the intention of not paying his fare. The applicant has deposed that he was not prosecuted in respect of that matter, and it is not material to any of the issues before me. However, the police, shortly after arresting the applicant, sought the assistance of the Immigration Service to determine his immigration status. On the same day, between 6.20 pm and 7.20 pm, Helen Hutcheson, an immigration officer, interviewed the applicant in English at Harrow Police Station. I have before me an affidavit from the officer giving an account of the interview. In it she says that she had no difficulty in communicating with the applicant and that there was no need for an interpreter. She gives the following account of the way in which she conducted the interview. She cautioned him at the beginning and, as the interview progressed, recorded her questions and his answers verbatim. At the end of the interview she invited him to read through her notes and initial his answers, and told him that he could change or add anything that he wished. He read the notes through, initialled his answers and made one alteration which he also initialled. At no time did he complain of any difficulty in reading her writing. According to the immigration officer's notes of the interview, a copy of which was provided to the applicant and has been put in evidence as an exhibit to an affidavit sworn by his solicitor, the applicant gave the following account to the officer. He had heard of the Academic College of Education before he had left Nigeria and had enrolled there three to four months after his arrival in the United Kingdom. In his view there were better qualified teachers in this country for the course that he wanted to do and he had had the motive to do the course for a very long time. He had decided at least two years before leaving Nigeria to come to this country to study and he had been studying for his A levels part-time whilst also working for the Nigerian Railways. He gave up his job with the Railways in September 1989, that is, about the time he left for the United Kingdom. The immigration officer's notes included the following record of questions and answers: "Q. How did you find out about Academic College? -- (A) I was hearing of it before I left Nigeria. So when I came down I went to register there. Q. Did you make any enquiries of any other colleges in the UK while in Nigeria? -- (A) Actually, no because when I came in I went direct to that place. Q. How long after you came to UK did you enrol in Academic College? -- (A) About 3 to 4 months. Q. When did you first decide to come to the UK to study? -- (A) in UK they have got better qualified tutors to approach this course so that one can pass it in a better grade. Q. So you were planning to study here when you arrived? (A) I've had the motive to do the course for a very long time, that is why I chose it. Q. When did you actually decide to come here and study? -- (A) It was at least 2 years ago. Q. What have you been doing in Nigeria . . .? -- (A) Working and doing my A levels part-time. Q. What kind of work is that? -- (A) I was working with Nigerian Railways. Q. Have you resigned from Nigerian? -- (A) Yes. Q. When did you resign? -- (A) September last year.
. . . Q. Did you resign before you left Nigeria? -- (A) I drafted the resignation letter before I left. Q. If you decided to come and study here 2 years ago why did you wait until now? -- (A) I knew before I register for this course I must do my A levels. Q. Did you tell the visa officer or the immigration officer you were coming to study? -- (A) No. Q. Why didn't you tell him? -- (A) My money hadn't cleared. The immigration officer deposes that, once the applicant had signed the notes, she considered the matter with a chief immigration officer, who authorised her to serve the applicant with a notice that he was regarded as an illegal entrant. She regarded him as an illegal entrant within the meaning of that expression in section 33(1) of the 1971 Act because, contrary to section 26(1)(c) of the Act, he had deceived the immigration officer on his arrival by telling him that he intended only a short visit of five days whereas he had intended a longer visit to study here. The immigration officer served the notice on the applicant the same evening. It also contained a notification that, as an illegal entrant, he would be detained under the authority of paragraph 16 of schedule 2 to the Act pending the giving of directions by the officer for his removal from the country under paragraphs 8 and 9 of schedule 2 to the Act. Paragraph 9 reads: "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)." Paragraph 8, in sub-paragraph (1), gives the immigration officer power to give directions for removal of a person who, on arrival in the United Kingdom, is refused leave. Paragraph 9 deals with those who have entered, but have done so illegally, and has the additional requirement before removal directions can be given that he is not given leave to enter or remain here. The determination of the immigration officer on 15 September 1989 that the applicant had obtained entry by fraud in contravention of section 26(1)(c) of the Act was a determination that the entry was in breach of the Act and that he was, therefore an illegal entrant as defined in section 33(1) of the Act. There is long-standing House of Lords authority for that construction of the statute in R v Secretary of State for the Home Department ex parte Zamir  AC 930. The step by which the House of Lords in that case reached the conclusion that such a person was an illegal entrant was that the fraud in some vitiated the leave to enter so that he was both an illegal entrant and a person without leave within the meaning of paragraph 9. Thus, Lord Wilberforce in that case, with whom Lords Dilhorne, Salmon, Fraser and Russell agreed, said, at page 947 of the report: "The basis on which the Secretary of State seeks to justify the detention and removal of the applicant is that leave to enter the United Kingdom was vitiated by deception and there is ample authority that an apparent leave to enter which had been obtained by deception is vitiated, as not being 'leave [given] in accordance with this Act' (section 3(1)): See R v Secretary of State for the Home Department ex parte Hussain  1 WLR 700, CA, and numerous cases following." In R v Secretary of State for the Home Department ex parte Khawaja  AC 74, the House of Lords confirmed Zamir to the extent that a person who had obtained entry by fraud was to be regarded as an illegal entrant. As to the process by which that conclusion was reached, Lord Wilberforce expressly adhered to the opinion that he had expressed in Zamir, and Lords Fraser, Scarman and Templeman agreed with the conclusion without comment on the reasoning behind it. Lord Bridge also reaffirmed the conclusion, but did so purely as an exercise in construction of the Act, not in reliance on any notion of the leave being vitiated by deception. At page 118 of the report he commented: "Despite the wealth of authority on the subject, there is nowhere to be found in the relevant judgments -- perhaps because none was thought necessary -- a definitive exposition of the reasons why a person who has obtained leave to enter by fraud is an illegal entrant. To say that the fraud 'vitiates' the leave or that the leave is not 'in accordance with the Act' is, with respect, to state a conclusion without explaining the steps by which it is reached. Since we are here concerned with purely statutory law, I think there are dangers in introducing the maxims of the common law as to the effect of fraud on common law transactions and still greater dangers in seeking to apply the concepts of 'void' and 'voidable'. In a number of recent cases in your Lordships' House it has been pointed out that these transplants from the field of contract do not readily take root in the field of public law.
. . . "My Lords, in my opinion, the question whether a person who has obtained leave to enter by fraud 'has entered in breach of the Act' is purely one of construction. If the fraud was a contravention of section 26(1)(c) of the Act, . . . and if that fraud was the effective means of obtaining leave to enter . . . then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry was 'in breach of the Act'. It is on this simple ground and subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants. I would add, however, that if I had reached an opposite conclusion, I should not have thought it appropriate, on this point, to depart from . . . Zamir." On Lord Bridge's approach, a person who obtained leave to enter by fraud was an illegal entrant yet might still have, or have had, leave to enter within the meaning of the Act. That is certainly how the Court of Appeal interpreted it in R v Secretary of State for the Home Department ex parte Lapinid  Imm AR 101. In that case Browne-Wilkinson LJ, giving the judgment of the court, said, at page 103 of the report: "Until the recent decision of the House of Lords in . . . Khawaja it had been established that the effect of obtaining leave to enter or remain in the United Kingdom by deceit was to render the leave so obtained void or voidable. On that basis, paragraph 9 presented no problems: the entrant satisfied both requirements of paragraph 9 since he was both an illegal entrant and (any leave he obtained being void or avoided) he could not be a person who had leave to enter or remain. "However, as Mr Riza in his most able argument has demonstrated, the decision in Khawaja makes that approach no longer possible. Mr Laws (for the Secretary of State) accepts that the speech of Lord Bridge establishes that, notwithstanding that leave was obtained by deceit, for the purposes of the 1971 Act such leave falls to be treated as leave and cannot be ignored. The applicant is an 'illegal entrant' because he has obtained such leave by means rendered criminal by section 26 of the Act and therefore he falls within the definition of an 'illegal entrant' in section 33(1) of the Act. But the leave so obtained still constitutes leave for the purposes of the Act." The problem in such a conclusion, as the Court of Appeal in Lapinid recognised, was that two requirements had to be satisfied before an immigration officer had power to give removal directions under paragraph 9 of schedule 2 to the Act, namely that the person is an illegal entrant and that he is not given leave to enter or remain. On Lord Bridge's approach, only the first requirement was satisfied in Khawaja. Nevertheless, and in the absence of any argument on the point, he appears, from certain passages in his speech, to have proceeded upon the basis that removal directions could nevertheless be given in such a circumstance. Lord Templeman had no doubt about it. He said, at pages 127-8 of the report: "Once, however, an applicant has obtained from the immigration officer leave to enter the United Kingdom, he becomes an entrant entitled as of right to remain in the United Kingdom during the currency and on the terms of the leave granted to him. The rights of such an entrant are forfeited if he is found to have obtained leave to enter by fraud. An entrant who has obtained leave to enter by fraud is an illegal entrant and is liable to be detained and removed from the United Kingdom at the behest of the immigration officer or the Secretary of State pursuant to paragraphs 9, 10 and 16 of schedule 2 of the Act." See also Lord Fraser at page 9 of the report. When the difficulty of fitting Lord Bridge's approach to the words of paragraph 9 of schedule 2, was put to the Court of Appeal in Lapinid, the court held that the decision in Khawaja obliged it to hold that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under paragraph 9. Browne-Wilkinson LJ, giving the judgment of the court, said, at pages 104 and 105 of the report: ". . . if it is shown that the leave to enter has been obtained by fraud, there is power under paragraph 9 of schedule 2 to direct removal of the applicant notwithstanding that in one sense he has 'leave to enter'.
. . . "Although it is established by the Khawaja case that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under paragraph 9, the words of paragraph 9 itself do not readily fit in with this conclusion once it is established that the original leave to enter is not invalid. The only explanation is that adopted by the judge in this case, viz, that the words of paragraph 9, 'where an illegal entrant is not given leave to enter . . .', are to be read as meaning, 'Where a person known to be an illegal entrant is not given leave to enter . . .'. This construction produces the result that leave to enter given at a time when it is not known that an entrant is illegal is irrelevant for the purposes of paragraph 8." I am, of course, bound by the view of the Court of Appeal in Lapinid that Lord Bridge's treatment of this point in Khawaja represents an acceptance by the majority of their Lordships in that case that Lord Wilberforce's statement of principle in Zamir, ie that fraud vitiates the leave, is no longer valid. I venture to make three comments. First, Lord Wilberforce expressly adhered, at page 98 of the report, in Khawaja to his earlier statement of principle, and Lords Fraser, Scarman and Templeman, though agreeing with Lord Bridge's conclusion, did not specifically identify upon what basis they reached it, the Zamir way or Lord Bridge's way. Second, to treat the original leave to enter given in ignorance of the fraud as irrelevant seems to me to be simply another way of saying that it is vitiated by the fraud. Third, paragraph 9 puts the two requirements for removal directions in the same tense. It reads, "Where an illegal entrant is not given leave to enter or remain" not, "Where an illegal entrant has not been given leave to enter or remain". It seems to me to contemplate, in the case of illegality by fraud, leave to enter or remain being considered again an refused when the illegality has been discovered. This is of a piece with the approach of the Court of Appeal's gloss on paragraph 9 in Lapinid, and more consistent with the principle of Lord Wilberforce in Zamir and Khawaja that fraud vitiates the original leave than that of Lord Bridge in Khawaja. In Lapinid the Court of Appeal also held that where leave to enter was obtained by fraud any automatic extension of that limited leave under the Immigration (Variation of Leave) Order 1976 pending the determination of an application to vary it under section 3(3)(a) of the Act was as irrelevant to the power of removal in paragraph 9 as the original leave. Browne-Wilkinson LJ, at page 104 of the report, put it in this way: "In our judgment, the 1976 Order can make no difference; it does not provide that there shall be a new and different leave to enter but merely extends the period of permitted stay granted by the original leave. Any such extension will be infected with the same vice as the original leave, the period of which has been extended". Browne-Wilkinson LJ's use of the word "vice" in this passage shows how near to Lord Wilberforce's original approach the court is still driven. The applicant challenges the determination of the immigration officer on 15 September 1989 that he was an illegal entrant and its normal consequences on a number of grounds. The first is that I cannot be satisfied to the high degree of probability required by the decision in Khawaja, that the evidence before the immigration officer and relied upon by her in her conclusion that the applicant was an illegal entrant. Mr Riza submitted that on the evidence before me the highest at which the case against the applicant can be put is that when he first entered the country on 22 September 1989 he contemplated, but did not firmly intend, to remain here as a student. Mr Riza argued that, if it was or may have been simply a matter of contemplation, the applicant did not deceive the immigration officer at Heathrow merely by telling him that he intended to stay for five days. In so arguing Mr Riza relied upon some obiter observations of Lord Donaldson, MR, in Oloniluyi v Secretary of State for the Home Department  Imm AR 135, at 141: "It is therefore nothing to the point that the charge that she [the applicant] obtained entry in June 1985 by deceit in that 'she posed as a visitor when it was her intention to study' is only tenuously supported by the immigration officer's assertion that at that time 'she had been contemplating studies'. Contemplation may be very far removed from firm intention." Mr Riza put his complaint under this ground on two bases. First, he referred me to the applicant's affidavit in support of this application in which the applicant gives the following account of what happened at the end of the interview on 15 September 1989. When the immigration officer invited him to read her notes of the interview he could not do so because of the illegibility of her handwriting. The immigration officer then read them to him, but he refused to sign them. She then told him in no uncertain terms that she would ring the chief immigration officer and arrange for his immediate removal to Nigeria. Upon hearing that threat he signed the notes. He also challenged some significant passages in the notes which I have already summarised. I need not detail his challenges. The effect of them is to suggest that he told the immigration officer that he had intended for some time before coming to this country to study accountancy but not necessarily here, and that his intention to do it here only crystallised after his arrival. No application was made by Mr Riza for the immigration officer to attend to be cross-examined by him on her affidavit, and he has not sought to call the applicant to give oral evidence to confirm his affidavit. I was invited by Mr Riza and by Mr Havers, counsel for the immigration officer, to decide the matter on the affidavit evidence. The Khawaja decision is authority for the proposition that it is for me to determine on a balance of high probability whether the immigration officer's version of the interview is the correct one and whether her conclusion as to the applicant's intention on arrival in this country is correct. It is apparent from the observations of Lord Bridge in Khawaja, at page 124 of the report, that it is accepted that this exercise may in most cases be conducted on the basis of affidavit evidence alone. Mr Havers relied on the following matters to support his contention that I should accept the immigration officer's evidence of what the applicant said in the interview on 15 September 1989, as recorded by her in her notes: 1 The applicant has not challenged her evidence that she had no difficulty in communicating with him and that there was no need for an interpreter. There was, therefore, no reason why she would have recorded the interview incorrectly. 2 The applicant does not challenge her evidence that she made the record verbatim and as the interview proceeded. So there is no obvious reason why her record should be inaccurate. 3 She has recorded a change of answer that he made in the course of the interview, a change that he has initialled, which indicates careful attention to what he was saying. 4. There is also recorded a change that he made and initialled when reading the notes at the end of the interview. 5 The applicant initialled every answer attributed to him and signed the foot of every page of the interview notes. 6 The applicant's contrary account of what happened was set out by him for the first time eight or nine months later, as compared with the immigration officer's verbatim account. 7 The applicant had made no request for the immigration officer to attend to be cross-examined as to her evidence on affidavit; nor had he sought leave to give oral evidence himself. Mr Riza did not attempt a comparable analysis as to the basis upon which I should compare the differing affidavit versions of the immigration officer and the applicant. He did, however, draw attention to the officer's handwriting, suggesting that it was difficult to read. In my view, whilst there may be some initial difficulty with a few words, the content and sense of what she has recorded is not difficult to determine. Moreover, as I have already mentioned, the immigration officer has deposed that she recorded the interview correctly, that the applicant at the end read her notes without any apparent difficulty, and signed them, initialling each answer. I agree with Mr Havers' submission that the evidence before me points overwhelmingly to the truth and accuracy of the immigration officer's account of the interview, certainly to the high degree of probability required by their Lordships' observations in Khawaja. Mr Riza submitted that, even if I am satisfied as to that, I could not be satisfied to the same high degree of probability that what the applicant said indicated an intention at the time of arrival in the United Kingdom in September 1989 to study here as distinct from mere contemplation of doing so. In making that distinction he relied upon the words of Lord Donaldson MR in Oloniluyi, which I have already set out. In my judgment, there is no basis for suggesting that the applicant's state of mind on entering the country was one of mere contemplation, not intention, of studying here. His answers to the immigration officer could not be plainer. They amounted to a clear indication that he had intended for some years to come to this country to study, that he had identified before leaving Nigeria an institution here where he could do that, and that he had given up his job in Nigeria about the time of coming here. Mr Havers has, by way of comparison, drawn my attention to two similar cases. The first is Adesina v Secretary of State for the Home Department  Imm AR 442, (CA), and R v Secretary of State for the Home Department ex parte Brakwah  Imm AR 366, (DC), in each of which an entrant who concealed his intention on entry to study here was held, following Khawaja, to be an illegal entrant. In the latter case, the applicant had agreed that before he came here "it was in . . . [his] mind [to study] if the conditions . . . [were] favourable". It was urged on his behalf that there was a difference between a wish to study here and an intention to do so. Glidewell LJ, giving the judgment of the court, said, at page 370 of the report, that it was a distinction of no real significance in the case. He added that, whilst philosophically a wish is only the first stage of an intention, a person who enters wishing to study if he can get into college and do something if he does get into college can properly be described as intending to study at the time when he seeks entry to the country. The case against his applicant, Nwanurue, is much stronger on the facts. On the immigration officer's evidence, which I have accepted, he admitted that, when he sought entry, he had a firm intention to study here, not just a wish or a contemplation. He was, therefore, an illegal entrant by the combined operation of sections 3(1), 26(1)(c) and 33(1) of the Act as interpreted by the House of Lords in Khawaja. And, in accordance with the Court of Appeal's ruling in Lapinid, he remained an illegal entrant despite the fact that before discovery of his fraud he had obtained an automatic extension of that limited leave to 23 June 1989 on his application to vary it under section 3(3)(a), by virtue of the Immigration (Variation of Leave) Order 1976. At the end of that extension, the applicant's limited leave to enter under section 3(1)(b) came to an end. He remained in the country only by virtue of his appeal of 31 May 1989 against the refusal to vary and the operation of section 14(1) of the Act, the passage from which I have already set out. The protection under that provision of no requirement to leave the United Kingdom continued until his arrest on 15 September 1989, the appeal remaining pending. Mr Havers submitted that when the applicant was declared on that date to be an illegal entrant because of the discovery of his fraudulent entry, he qualified under paragraph 9 of schedule 2 to the Act as "an illegal entrant . . . not given leave to enter or remain in the United Kingdom", to whom the immigration officer would be entitled to give removal directions under paragraph 8 of that schedule. That was because he was an illegal entrant (Khawaja), such leave as he had had expired and was, in any event, irrelevant (Lapinid). All that he had was the protection of s 14(1) that he would not be required to leave pending the appeal from refusal to vary the limited leave, which the Court of Appeal in Lapinid, at page 105 of the report, said was a protection from deportation under section 5(1) of the Act not from a direction to remove under paragraph 9 of schedule 2. Accordingly, submitted Mr Havers, he was liable to removal directions by the immigration officer under paragraphs 8 and 9 of schedule 2. Mr Havers added that if, contrary to his argument, the applicant could be said still to have "leave to enter or remain" within the meaning of those words in schedule 2, paragraph 9, whether by virtue of section 14(1) or otherwise, the effect of Lapinid is that that leave was infected with the same vice as the original leave, and the applicant was, for that reason, still an illegal entrant to whom leave to enter or remain had not been given and who was, therefore, liable to removal directions under paragraphs 8 and 9 of schedule 2. Mr Riza submitted that that analysis, based on Lapinid, was wrong for two main reasons. First, he submitted that paragraph 9 of schedule 2 only gives power to remove an illegal entrant who has not been given leave to enter or remain, not to remove a person who has no leave to enter or remain. He submitted, therefore, that whatever the status of that leave after discovery of the fraud, the applicant was nevertheless a person who had, that is, previously, been given leave to enter or remain and, therefore, did not qualify under the paragraph for removal directions. He suggested that the only power of removal was one of deportation by the Secretary of State under his powers in section 3(5) of the Act. He based this submission on the words in paragraph 9, "Where an illegal entrant is not given leave to enter or remain . . .". In my judgment, that argument is misconceived for a number of reasons. Paragraph 9 is concerned with illegal entrants as defined in section 33(1) of the Act and includes those who have obtained leave to enter by fraud and whose leave is therefore to be regarded as irrelevant in accordance with the Lapinid approach. Moreover, the words of the paragraph are not "Where an illegal entrant has not been given leave"; they are "Where an illegal entrant is not given leave". The provision is clearly aimed at the time of the discovery of the illegality of the entrance and the decision to be made then by the immigration officer whether to give the entrant leave to enter or remain. This may be at the time of unlawful entry where the entrant seeks to avoid immigration control or after it where he has obtained leave to enter by fraud. In the light of the rationale in Lapinid that the original leave is irrelevant for the purposes of paragraph 9, it would not, in any event, produce a different result if the paragraph did read in the past tense to match Mr Riza's submission. Second, Mr Riza submitted that the rationale of the House of Lords in Khawaja and of the Court of Appeal in Lapinid have been "de-stabilized" because of Lord Bridge's dependence in Khawaja on the view that deportation was not available as a means of removing illegal entrants who have obtained entry by fraud and his subsequent change of mind about that in R v Immigration Appeal Tribunal ex parte Patel  AC 910, at 920-923. Mr Riza submitted that Lord Bridge's mistaken view in Khawaja that illegal entrants who had obtained entry by fraud could not be deported under section 3(5)(b) of the Act may have driven him to conclude, when he would not otherwise have done so, that they could be removed under paragraph 9 of schedule 2. For that reason he invited me to consider myself not bound by the Court of Appeal's ruling in Khawaja or Lapinid that paragraph 9 of schedule 2 gives an immigration officer power to direct the removal of an illegal entrant who has obtained limited leave to enter by fraud and has obtained an extension of that leave by applying under section 3(3)(a) of the Act for its variation. Put more shortly, he submitted that deportation under section 3(5)(b), not a direction under paragraph 9, was the only way to remove an illegal entrant in such circumstances. In making this submission, Mr Riza did not claim that all of Lord Bridge's reasoning on this point in Khawaja was "de-stabilized". He relied on the Court of Appeal's interpretation in Lapinid of Lord Bridge's speech that leave to enter had been given, albeit obtained by fraud, but challenged its interpretation that the leave was irrelevant and that the applicant could be removed under paragraph 9 as an illegal entrant. But, quite apart from this inconsistency, Mr Riza's submission is, in my view, misconceived. That is because Lord Bridge's view, in the passage from Khawaja that I have set out, as to what constituted an illegal entrant under the 1971 Act, was based on his construction of sections 26(1)(c), 33(1) and paragraph 9 of schedule 2 to the Act, and did not depend upon his then view as to the unavailability of deportation to such a case. In Patel, at page 923 of the report, Lord Bridge himself said that his views on the section 3(5)(b) point in Khawaja were peripheral to his construction of the meaning of an "illegal entrant": "Whether or not the words I used in ex parte Khawaja which have given rise to the problem here examined . . . were strictly obiter or not, they were certainly peripheral to the point at issue in ex parte Khawaja raised by Mr Blom-Cooper's argument that a person who had obtained leave to enter by fraud was not an 'illegal entrant.' Thus, even if a decision to allow the present appeal technically involves resort to the Practice Statement of 1966 as a departure from a previous decision of the House, I am satisfied that your Lordships need not be inhibited from taking that course. The view I expressed about section 3(5)(b), from which I would now depart, was not even necessary to the refutation of Mr Blom-Cooper's argument. The primary reason for declining to construe the expression 'illegal entrant' as referring only to a clandestine entrant was expressed in a later paragraph in my speech . . . [He then set out the passage from page 118 of his speech in Khawaja which I have set out earlier in this judgment, and continued] The reasoning in this paragraph is unaffected by the point which arises in the instant appeal." It is clear that in Patel Lord Bridge reaffirmed what he considered to be the ratio in Khawaja, and that his change of mind on the availability of deportation as a means of removing illegal entrants by deception did not affect it. The only change was that an illegal entrant by deception may be removed either under paragraph 9 of schedule 2 or deportation under section 3(5)(b). It should also be borne in mind that Lord Bridge was the only one of their Lordships in Khawaja to refer to the section 3(5)(b) point. In any event, I am bound by the ruling of the Court of Appeal in Lapinid that the applicant was an illegal entrant, that his earlier limited leave to enter and remain, and such extension of it as there may have been at the time of the discovery of his illegal entry, was irrelevant, and that he was liable to removal directions under paragraph 9 of schedule 2. The second ground of application is that, even if the applicant qualified under paragraph 9 of schedule 2 for removal directions as an illegal entrant, the immigration officer was barred from treating him as such on 15 September 1989 because the Secretary of State knew, or ought to have known, that he was an illegal entrant on 26 May 1989. That was the day when he informed him that he was not satisfied that he was in regular attendance on a full-time course of study that met the requirements for admission as a student or that he intended to leave the country on completion of his studies, and informed him that, pursuant to the Immigration (Variation of Leave) Order 1976, his stay would be extended to 23 June 1989 to enable him to appeal if he wished. Mr Riza submitted that the Secretary of State, by that notice, indicated that he knew, or knew sufficient facts to deduce, that the applicant was at a bogus school and had, therefore obtained entry by fraud, yet continued to treat the leave to enter as qualifying for appeal against his refusal to vary and for automatic extension of time pending appeal. Mr Riza made the same point in respect of the Secretary of State's section 14(1) notification on 12 June 1989 on receipt of his appeal against the refusal to vary, that he would not be required to leave the United Kingdom pending the determination of the appeal. Mr Riza submitted that the Secretary of State, and through him, the immigration officer, was, therefore, estopped from treating him as an illegal entrant and/or a person without leave to enter under paragraph 9 of schedule 2. He pointed out that the Secretary of State did not have to implement that procedure if he knew of the applicant's dishonest entry; he could have used his powers under paragraph 98 of the Statement of Changes in Immigration Rules to curtail his leave to enter or remain: HC169/83 as substituted by paragraph 18 of HC503/85. The short answer to this submission is that, as I have already indicated, there is no evidence to suggest that the Secretary of State knew on 26 May 1989, or at any time before the immigration officer's interview of the applicant on 15 September 1989, that he was an illegal entrant. He knew that the applicant had entered on a leave limited for six months and that during that period he had applied for variation to remain longer as a student. He also knew that there were at least doubts over whether the applicant was at the time of the application to vary a genuine student. However, even if he knew, which was unlikely, that the applicant had represented on entry that he only intended to stay for five days, there was nothing to indicate that this was not simply a change of mind after his arrival and during the six months leave that he was given. As to constructive knowledge, Mr Riza has not suggested any basis in law for such a notion in this context. There is nothing in paragraph 9 as glossed by the Court of Appeal in Lapinid to support it. However, even if such a notion were applicable, I am of the view that there was insufficient here to put the Secretary of State on enquiry in May 1989 as to whether he was dealing with an illegal entrant. As Mr Havers submitted, it is not incumbent on the Secretary of State to investigate the legitimacy of the status of entry whenever a subsequent application to remain is for a different purpose from that given on entry. I am satisfied that, even if the argument were sustainable in law, on the evidence before me the facts are against it here. There is no basis for saying that the Secretary of State had actual or constructive knowledge before 15 September 1989 that the applicant was an illegal entrant. The third ground of the application is that the immigration officer's decision on 15 September 1989 was invalid because it was in breach of the applicant's legitimate expectations and, as such, so unfair as to amount to an abuse of power. Mr Riza relied under this head on the Secretary of State's letter to the Academic College of Education of 12 June 1989 indicating his willingness to refer the applicant's appeal against his refusal to vary under section 3(3)(a) of the Act to an adjudicator under section 14(1) of the Act and giving him the protection under that section of not being required to leave while the appeal was pending. Mr Riza suggested that the Secretary of State's willingness to apply the appeal provisions and the protection of section 14(1) distinguishes this case from Lapinid where the Secretary of State never formally determined the illegal entrant's application to vary. Mr Riza submitted that, once the Secretary of State had indicated to the applicant his willingness to submit to the appeal procedure under section 14(1), he gave the applicant a legitimate expectation, and therefore a right, that the appeal would take place and that, if it succeeded, the applicant would be permitted to remain in the United Kingdom as a student. He further submitted that neither the Secretary of State nor the immigration officer could deprive him of his right of appeal by using the power under paragraph 9 of schedule 2 to direct his removal as an illegal entrant. Mr Riza put this submission in absolute terms, but added as fallback position that they could not deprive the applicant of his right of appeal without good reason. It is well established that unfairness amounting to an abuse of power in the breach of a representation or otherwise may be attacked by way of judicial review. See the speech of Lord Scarman in R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd  AC 617 at 651-2, and the speech of Lord Templeman, with which the other Law Lords agreed, in in re Preston  AC 835 at 866-7, an application for judicial review of the Inland Revenue Commissioners. In the latter case Lord Templeman said: "In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole remedy and an appropriate remedy. There may be cases in which conduct which savours of breach of contract or breach of representation does not constitute an abuse of power; there may be circumstances in which the court in its discretion might not grant relief by judicial review nothwithstanding conduct which savours of breach of contract or breach of representation. In the present case, however, I consider that the appellant is entitled to relief by way of judicial review for 'unfairness' amounting to abuse of power if the commissioners have been guilty of conduct equivalent to a breach of contract or breach of representations on their part." In R v Secretary of State for the Home Department ex parte Ruddock  1 WLR 1482, the "telephone tapping" case, Taylor J, as he then was, reviewed the authorities on the doctrine of legitimate expectation, and summarised them, at page 1497 of the report, by saying that the doctrine in essence imposes a duty to act fairly. The jurisprudential basis for Mr Riza's reliance on the doctrine of legitimate expectation in this context is, first, some passages from the judgments of Lord Donaldson, MR and Dillon LJ in R v Secretary of State for the Home Department ex parte Oloniluyi  Imm AR 135, at 146. In that case the appellant was a Nigerian citizen who had been admitted to the United Kingdom as a visitor. She applied for her leave to be varied to allow her to remain as a student. Before that application was determined she returned to Nigeria briefly for Christmas relying on the assurance of an immigration officer, given to her before she left, that she would be given leave to enter when she returned. On her return she was refused leave to enter. On these facts Lord Donaldson, MR said at pages 141 to 142 of the report: "What is to the point is whether the respondent has treated the applicant unfairly by refusing leave to re-enter the United Kingdom after creating a legitimate expectation that she would have no trouble in doing so. What is also to the point is whether the immigration officer and the Secretary of State misdirected themselves in law in failing to take account of this factor.
. . . "I would allow the appeal and quash the decision of the immigration officer to refuse leave to enter and the Minister's decision to make arrangements for the applicant to be returned to Nigeria upon the grounds that the decisions were reached unfairly and involved a failure to take account of the relevant circumstances contrary to rule 58 of the immigration rules." And Dillon LJ said, at page 146 of the report: "It is accepted by the Crown that as a matter of law estoppel may lie against the crown. The argument under the label 'estoppel' and the 'legitimate expectation' argument are substantially the same. On the facts of this case, the appellant had a legitimate expectation that she would be re-admitted as a returning student when she presented herself at Heathrow on 5 January. It was therefore wrong that she was refused admission on the ground specified in the notice of refusal, that the immigration officer was not satisfied that she was a genuine student who intended to leave the United Kingdom on completion of her studies." Staughton LJ agreed with both judgments. In R v Secretary of State for the Home Department ex parte Mowla and ex parte Patel, 6 December 1990, (CA) (See now  Imm AR 210) the Court of Appeal indicated that the Oloniluyi principle was not of general application in immigration cases, should be treated with some caution, and was, in any event, limited to cases where nothing to the detriment of the applicant came to light after the circumstance giving rise to the applicant's expectation. See per Glidewell LJ at pages 17-20, per Ralph Gibson LJ at pages 23-28, and per Lord Donaldson MR at pages 28-32 of the transcript of the judgment. In particular, Gibson LJ said, at pages 27-28: ". . . as to the concept of legitimate expectation, I have difficulty in seeing how it can properly provide the basis in the law relating to immigration for any substantive right, irrespective of the procedural propriety of the making of the decision to refuse leave to enter, by which the passenger can claim a right to enter. The decision to refuse entry may be open to attack upon Wednesbury grounds including irrationality . . . If the decision of the immigration officer, however, cannot be shown to have been unlawfully made or irrational and if it was made in accordance with the procedure and rules laid down by Parliament, I do not accept that something said on an earlier occasion by an official of the Home Office can be held to have given rise to a right that the immigration officer must grant leave to enter." Quite apart from the uncertainty of the applicability and the extent of the doctrine of legitimate expectation in immigration cases the short answer to this third ground of application is to be found in the words of Browne-Wilkinson LJ in Lapinid, at page 105 of the report, that "a person who has obtained leave by fraud cannot insist on the determination of any application by him to vary the terms of leave so fraudulently obtained: a man cannot profit by his own wrongs". Such a basic concept was also implicit in all the judgments of the Court of Appeal in Mowla and Patel, to which I have just referred. Undaunted by those two authorities, Mr Riza submitted that an applicant who obtains limited leave to enter by fraud and then seeks and is given the opportunity to appeal a refusal to vary the limit on his leave, may nevertheless have a legitimate expectation of proceeding with the appeal if the Secretary of State knew or ought to have known, when allowing him to appeal, that he was an illegal entrant. He sought to distinguish this case from Lapinid on the basis that there the applicant did not get as far as obtaining a decision on his application to vary. In my judgment, Mr Riza's distinction of Lapinid on the facts is immaterial. The principle there stated by Browne-Wilkinson LJ that a man cannot profit by his own wrong clearly applies at whatever stage the applicant has reached in his attempt to vary his limited leave. If, which I need not decide, a right of the sort argued for by Mr Riza based on the doctrine of legitimate expectation could arise in this context, there could be nothing legitimate about an applicant's expectation where he has obtained limited leave to enter by fraud and then, when the authorities are still unaware of the fraud, applies to vary it. Here, as I have found, the applicant did obtain limited leave to enter by fraud and the Secretary of State did not learn that and was not put on notice of it until long after he had considered and refused the application to vary and had set in train the procedure for the applicant to appeal that refusal. The indication, such as it was, in the letter of 12 June 1989 that the applicant would not be required to leave pending the determination of his appeal was, adopting the formula of Browne-Wilkinson LJ in Lapinid, at page 104 of the report "infected with the same vice as the original leave the period of which . . . [had] been extended". In the circumstances, the Secretary of State's letter of 12 June 1989 could have given the applicant no expectation, legitimate or otherwise, that he would be entitled to rely on the machinery for variation provided by the Act when his fraudulent entry was discovered. All that the letter did, in indicating that he would not be required to leave the United Kingdom pending the determination of the appeal, was to inform him of the position in law under section 14(1) of the Act as the Secretary of State, in ignorance of the true facts, understood it to be. There is no basis upon which, adopting the simple test of Taylor J in R v Secretary of State for the Home Department ex parte Ruddock the Secretary of State or the immigration officer could be said to have acted unfairly to the applicant here. Accordingly, the application is dismissed.
DISPOSITION: Application dismissed.
SOLICITORS: Namel de Silva & Co, London NW10; Treasury Solicitor
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