R v. Immigration Officer, Ex parte Chan

R v IMMIGRATION OFFICER, Ex parte CHAN

COURT OF APPEAL (CIVIL DIVISION)

[1992] 2 All ER 738, [1992] 1 WLR 541, [1992] Imm AR 233

Hearing Date: 28 November, 20 December 1991

20 December 1991

Index Terms:

Immigration -- Illegal entrant -- False statement -- Work permit wrongly obtained for immigrant by third party -- Immigrant producing permit to gain entry without knowledge of its falsity -- Immigrant committing no offence -- Whether illegal entrant -- Immigration Act 1971 (c 77), ss 3(1), 26(1)(c), Sch 2, para 4(2)(b)

The applicant, a Hong Kong citizen, came to the United Kingdom on a visitor's permit to visit his relatives. A friend offered from a work permit for the sum of @2,000. The applicant returned to Hong Kong and in due course received a work permit for which he paid @2,000. He returned to the United Kingdom on a Hong Kong passport and with the work permit which, unknown to him, had been improperly issued and was invalid. He was allowed to enter but he was subsequently arrested and interviewed by an immigration officer. The officer served on the applicant a notice stating that he was an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971. The applicant applied for leave to apply for judicial review on the ground, inter alia, that the immigration officer had failed to prove that the applicant had committed an offence under section 26 of the Act by making a representation which he knew to be false. He was refused leave but on renewing his application to the Court of Appeal, he was granted leave. On the hearing of the application for judicial review:- Held, dismissing the application, that under section 3(1) of the Immigration Act 1971 an immigrant could only enter the United Kingdom lawfully if he had entered in accordance with the provisions of the Act; that those provisions included a requirement in paragraph 4(2)(b) of Schedule 2 that the immigrant produced relevant documents, which included a work permit, and that requirement was only met by the production of genuine documents; that the applicant, although innocently producing a false work permit, had not complied with the requirement of paragraph 4(2)(b); and that, therefore, he did not enter the United Kingdom in accordance with the provisions of the Act and he was an illegal entrant. Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466, CA applied. Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, HL(E) considered. Hiran Khan (alias Gias Ali) v Secretary of State for the Home Department [1990] Imm AR 327, CA Mokuolu v Secretary of State for the Home Department [1989] Imm AR 51, CA Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466; [1977] 3 All ER 538, CA Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74; [1983] 2 WLR 321; [1983] 1 All ER 765, HL(E) Reg v Secretary of State for the Home Department, Ex parte Mohammed Salim [1990] Imm AR 316 Rehal v Secretary of State for the Home Department [1989] Imm AR 576, CA Durojaiye v Secretary of State for the Home Department [1991] Imm AR 307, CA Reg v Immigration Appeal Tribunal, Ex parte Patel (Anilkumar Rabindrabhai) [1988] AC 910; [1988] 2 WLR 1165; [1988] 2 All ER 378, HL(E) Reg v Secretary of State for the Home Department, Ex parte Patel (Dhirubhai Gordhanbhai) [1986] Imm AR 515, CA The following additional cases, although not cited, were referred to in the skeleton arguments: Reg v Governor of Ashford Remand Centre, Ex parte Bouzagou [1983] Imm AR 69, CA Reg v Secretary of State for the Home Department, Ex parte Rahim Miah (Note) [1990] 1 WLR 806; [1990] 2 All ER 523, CA

Introduction:

APPLICATION for judicial review. In 1989 the applicant, Kwang Fai Chan, a Hong Kong citizen, arrived in the United Kingdom on a visitor's permit and was employed as a chef in his uncle's restaurant in Nottingham. The applicant returned to Hong Kong at the end of 1990 and while there received a work permit from a friend in return for the payment of the sum of @2,000. On 5 February 1991 the applicant returned to the United Kingdom with his Hong Kong passport and the work permit, which purported to be valid for three years. The applicant was given entry clearance. On 4 April 1991, whilst working at his uncle's restaurant, the applicant was arrested and detained and on 5 April 1991 he was informed on behalf of the Secretary of State for the Home Department that the immigration officer was satisfied that he was an illegal entrant and that he would be deported. On 29 April 1991 the applicant applied for leave to apply for judicial review of that decision on the grounds that (1) he had no knowledge that the work permit had been improperly issued and (2) the burden lay on the immigration officer to prove to a high degree of probability that leave to enter had been obtained by deception and that the immigration officer had failed to prove that the applicant had either made or caused to be made a representation which he had known to be false or that any such representation had been the effective means by which the applicant had obtained leave to enter. On 2 May 1991, Popplewell J, on consideration of the documents only, refused leave to apply for judicial review of the decision by the immigration officer upon the ground that no criticism of the decision could be made. On 16 May 1991 Brooke J refused in open court the renewed application in similar terms by the applicant for leave to apply for judicial review. By a notice of renewal dated 21 May 1991 the applicant again applied for leave to move for judicial review and on 17 October 1991 the Court of Appeal granted him leave and ordered that the substantive application should be heard by the Court of Appeal. The facts are set out in the judgment of Neill LJ. Ian MacDonald QC and Richard Scannell for the applicant; David Pannick for the Secretary of State. Cur adv vult 20 December. The following judgments were handed down. PANEL: Neill, Leggatt LJJ, Sir George WallerNEILL LJ

Judgment One:

NEILL LJ: This is an application by Mr Kwang Fai Chan for judicial review of the decision of an immigration officer dated 5 April 1991. By his decision the immigration officer stated that he was satisfied that the applicant was an illegal entrant as defined in section 33(1) of the Immigration Act 1971 and that in due course directions would be given for his removal as an illegal entrant from the United Kingdom. On 29 April 1991 the applicant applied for leave to make an application for judicial review. This application was refused on paper by Popplewell J on 2 May 1991. On 16 May 1991 the applicant's application for leave was refused in open court by Brooke J on the basis that the matter ought to be determined by the Court of Appeal. In October 1991 the Court of Appeal, on the applicant's renewed application for leave, granted leave to move for judicial review and ordered that the substantive application be heard by this court. The applicant was born in Hong Kong on 11 July 1964. He first came to the United Kingdom in about 1989 when he entered on a visitor's permit to enable him to visit relatives. During the time he was in England in 1989 and 1990 he helped his uncle, Mr Philip Chan, at his restaurant, the China Palace, in Farnsfield, Nottingham. While he was working at the restaurant he was approached by Mr Tang Ho Yu who offered to obtain a work permit for him. The applicant knew Mr Tang Ho Yu because they had previously lived in the same village in Hong Kong. The price for the work permit was stated to be @2,000. At or about Christmas 1990 the applicant returned to Hong Kong via Holland. He remained in Hong Kong for the next few weeks. While he was there he received a work permit from Mr Yu and sent Mr Yu @2,000. On 5 February 1991 the applicant arrived in the United Kingdom from Hong Kong. He had in his possession a Hong Kong passport No 606112001 issued on 23 January 1991. He was also in possession of the work permit which has been sent to him by Mr Yu. This work permit purported to entitle the applicant to work at the China Palace restaurant as a chef for the period of 36 months from the date of entry to the United Kingdom. He showed these documents to the immigration officer and obtained leave to enter. On 4 April 1991 the applicant was arrested at the China Palace restaurant in Farnsfield and he was detained. On the following day he was issued with a notice stating that the immigration officer was satisfied that he was an illegal entrant. It is now plain that the work permit was issued improperly by an officer in the Department of Employment who has now been dismissed. Inquiries have established that file No 9029730 (the reference number on the face of the work permit produced by the applicant) cannot be traced and almost certainly never came into existence. Accordingly it seems clear that there never was any supporting documentation for the issue of the work permit. For the purpose of the present proceedings it is accepted on behalf of the Secretary of State that the applicant had no knowledge that the work permit which he produced to the immigration officer had been improperly issued. The question which arises is whether he is nevertheless an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 notwithstanding that he had no personal knowledge of the invalidity of the work permit in his possession. The legislation It is necessary to refer to some of the provisions of the Act of 1971. Section 3 contains general provisions for the regulation and control of entry into the United Kingdom. Section 3(1) provides: "Except as otherwise provided by or under this Act, where a person is not [a British citizen] (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both." Section 3(2), so far as is material, provides: "The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; . . ." It is provided by section 4(1) of the Act of 1971 that the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers. By section 4(2) it is provided, inter alia, that the provisions of Schedule 2 shall have effect with respect to "the exercise of immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter . . ." Schedule 2 contains administrative provisions as to control on entry. Paragraph 2 of the Schedule empowers an immigration officer to examine any persons who have arrived in the United Kingdom for the purpose of determining, in the case of a person who is neither a British citizen nor otherwise entitled to enter the United Kingdom without leave, "whether . . . he should be given leave and for what period and on what conditions (if any), or should be refused leave." One of the matters which an immigration officer will require to consider when deciding whether leave to enter should be given and, if so, on what conditions is whether or not the person seeking entry is in possession of a work permit. Thus the Immigration Rules laid before Parliament in accordance with section 3(2) of the Act of 1971 contain provisions relating to work permits. Paragraphs 34 and 35 of the Statement of Changes in Immigration Rules (HC 251) (which was the statement in force at the relevant time) provide: "34. If a passenger is coming to the United Kingdom to seek employment or to take employment for which he has no work permit . . . leave to enter is to be refused. Permits are issued by the Department of Employment in respect of a specific post. The possession of a work permit does not absolve the holder from complying with visa requirements. "35. The holder of a current work permit . . . should normally be admitted for the period specified in the permit, subject to a condition permitting him to take or change employment only with the permission of the Department of Employment. The immigration officer is, however, to refuse leave to enter if his examination reveals good reason for doing so. For example, leave to enter should be refused where, 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 permit, or the holder's true age puts him outside the limits for employment or he does not intend to take the employment specified, or is not capable of doing so. . . ." Paragraph 4 of Schedule 2 to the Immigration Act 1971 contains provisions as to the information and documents which the person examined must produce. Paragraph 4, so far as is material, provides: "(1) It shall be the duty of any person examined under paragraph 2 or 3 above to furnish to the person carrying out the examination all such information in his possession as that person may require for the purpose of his functions under that paragraph. (2) A person on his examination under paragraph 2 or 3 above by an immigration officer shall, if so required by the immigration officer -- (a) produce either a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship; and (b) declare whether or not he is carrying or conveying documents of any relevant description specified by the immigration officer, and produce any documents of that description which he is carrying or conveying. In paragraph (b), 'relevant description' means any description appearing to the immigration officer to be relevant for the purposes of the examination." Finally I should refer to parts of section 26 of the Act of 1971 and to certain definitions in section 33. Section 26(1), so far as is material, provides: "A person shall be guilty of an offence . . . in any of the following cases -- . . . (b) if, without reasonable excuse, he refuses or fails to furnish or produce any information in his possession, or any documents in his possession or control, which he is on an examination under [Schedule 2] required to furnish or produce; (c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true; (d) if, without lawful authority, he alters any . . . work permit or other document issued or made under or for the purposes of this Act, or uses for the purposes of this Act, or has in his possession for such use, any . . . work permit or other document which he knows or has reasonable cause to believe to be false; . . ." Section 33 of the Act of 1971 is the interpretation section. By section 33(1) it is provided that "entrant" means "a person entering or seeking to enter the United Kingdom," and that "illegal entrant" means: "a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered; . . ." Section 33(1) contains a definition of "immigration laws" as meaning the Immigration Act 1971 "and any law for purposes similar to [the Act of 1971] which is for the time being or has (before or after the passing of [the Act of 1971]) been in force in any part of the United Kingdom and Islands; . . ." The section also contains the following definition of a work permit: "'work permit' means a permit indicating, in accordance with the immigration rules, that a person named in it is eligible, though not [a British citizen], for entry into the United Kingdom for the purpose of taking employment." The case for the Secretary of State Though Mr Chan is the applicant in the present proceedings, it will be convenient to refer first to the arguments put forward on behalf of the Secretary of State. It was submitted that the applicant was an illegal entrant for two quite separate reasons. First, it was submitted that he was an illegal entrant because: (a) the person who had obtained the work permit and had sent it to the applicant had "caused" a representation to be made to the immigration officer which he knew to be false, namely, that the work permit was valid, and had thereby committed an offence against section 26(1)(c) of the Act of 1971; and (b) the applicant had therefore entered "in breach of the immigration laws." Second, it was submitted that the obligation imposed on the applicant under paragraph 4 of Schedule 2 to the Act of 1971 to furnish information and to produce documents included an obligation, as the applicant was coming to the United Kingdom to take employment, to produce a work permit. The obligation to produce a work permit meant an obligation to produce a valid work permit. By failing to produce a valid work permit the applicant was in breach of the immigration laws even though, owing to the lack of the necessary mens rea, he had not committed an offence under section 26(1)(c) or (d) of the Act of 1971. The case for the applicant On behalf of the applicant on the other hand it was submitted that in the absence of any knowledge by him of the invalidity of the work permit he could not be an illegal entrant. Since the decision of the House of Lords in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 it was clear that illegal entrants fell into two and only two categories -- (a) those who obtained entry clandestinely, for example, by landing on the beach; and (b) those who obtained leave to enter by practising fraud or deception. Even if, which was not conceded, a third party had "caused" a false representation to be made to the immigration officer that did not make the applicant an illegal entrant. The definition in section 33(1) of the Act of 1971 made it clear that the breach and the entry had to be made by the same person. An innocent entrant could not be regarded as an illegal entrant merely because, unknown to him, his entry was made possible by someone else's deception. It was further argued on behalf of the applicant that, though it was accepted that he was under a duty in accordance with paragraph 4 of Schedule 2 to produce a work permit, the innocent production of an invalid work permit did not make his entry illegal. Even if the decision of the Court of Appeal in Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466 were correct (which the applicant might wish to challenge hereafter), a distinction could be drawn between a passport, and perhaps other identity documents, on the one hand and documents such as work permits on the other hand. Paragraph 4(2)(a) of Schedule 2 imposed an obligation to produce "a valid passport." The obligation imposed in paragraph 4(2)(b) to produce other specified documents contained no similar obligation as to their validity. The categories of illegal entrants The argument that the applicant was an illegal entrant because the third party, in breach of section 26(1)(c) of the Act of 1971, had "caused" a false representation to be made to the immigration officer at the time of the applicant's examination on entry was the principal argument advanced on behalf of the Secretary of State. Counsel for the Secretary of State referred us to the well known passage in the speech of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 118: "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 -- in other words if, but for the fraud, leave to enter would not have been granted -- 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 itself 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." Counsel submitted that, if one applied these words in the present case, the applicant would not but for the fraud have been granted leave. The contravention of the Immigration Act 1971 by the third party and the obtaining of leave were the two inseparable elements of the process of entry. The entry was therefore in breach of the Act of 1971 and the applicant was an illegal entrant. This passage in Lord Bridge's speech, however, has to be read in conjunction with a later passage, at p 119, where he referred to the problems which might arise if the fraud was that of a third party: "Finally, I would wish to leave for consideration on a future occasion the difficult questions that may arise when leave to enter has been obtained by the fraud of a third party, but the person entering had no knowledge of the fraud. I am not convinced that Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466, where it was held that the innocent wife who obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it safer to express no present view but to leave such cases to be decided as they arise." In the light of this later passage in Lord Bridge's speech it seems to me to be clear that he did not intend at that stage to extend the categories of illegal entrants beyond those who had entered clandestinely or who had obtained leave to enter by themselves practising fraud or deception in contravention of section 26(1)(c) of the Act of 1971. This conclusion seems to me to be in accordance with the language used by Lord Fraser of Tullybelton, at p 96H, by Lord Wilberforce, at p 105D, and by Lord Templeman, at p 128B. It is also to be noted that Lord Wilberforce, at p 99C, left open for separate consideration the case of deception by a third person. It is therefore necessary to consider the effect of the fraud of the third party and of the invalidity of the work permit by looking again at the relevant provisions of the Act of 1971 and at the decision of the Court of Appeal in Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466, though remembering that Lord Bridge in Ex parte Khawaja, at p 119F, expressed some doubt as to whether the decision in Ex parte Khan was correct. The question can be posed: are there any categories of illegal entrants other than those specifically recognised in Ex parte Khawaja? It is clear that those who require leave to enter by reason of the provisions of section 3 of the Act of 1971 but nevertheless enter without leave are illegal entrants even though they themselves may be entirely innocent of any fraud or deception. In Mokuolu v Secretary of State for the Home Department [1989] Imm AR 51 the entrants who were sisters were citizens of Nigeria. Their passports stated that they were born in the United Kingdom and on the basis of those statements they were admitted without the grant of leave. It was later discovered that they had not been born in England and accordingly required leave to enter under section 3 of the Act of 1971. As Bingham LJ explained, at p 55: "If a person seeking entry to the country is not a British citizen he is not entitled to enter unless he is given leave pursuant to section 3(1). If a person needs leave and enters without it then he is an illegal entrant because he has entered unlawfully even though he has not entered in any way dishonestly or fraudulently. An illegal entrant is liable to removal pursuant to Schedule 2." Furthermore, a person who requires leave to enter but enters without leave will be an illegal entrant even though his passport may clearly show his status and his entry without leave was due to the fact that the immigration officer mistakenly believed him to be British citizen: see Rehal v Secretary of State for the Home Department [1989] Imm AR 576. These two cases are not directly in point, but they support the proposition that the question whether a person is an illegal entrant is to be answered by considering whether or not he has entered in accordance with the Act of 1971 rather than by reference to whether or not he or some other person has committed a criminal offence. A person who requires leave to enter but enters without leave is an illegal entrant because of the provisions of section 3 of the Act of 1971; it is irrelevant whether of not he may also have committed an offence under section 24(1)(a). In Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466 the appellant married a United Kingdom citizen as his third wife. The marriage took place in Pakistan. On arrival at immigration control at Heathrow airport the appellant, who was illiterate, produced a Pakistani passport which had been supplied to her by her husband. The passport which she produced was in fact that of her husband's second wife. The immigration officer allowed the appellant to enter, but following subsequent inquiries she was detained as an illegal entrant. In the Court of Appeal the decision that the appellant was an illegal entrant was upheld. Megaw LJ said, at p 1470: "If a person obtains from the immigration officer leave to enter by reason of the use by that person of, for example, a materially false document -- and by 'materially false' I mean a document the falsity of which is material in leading to the decision that leave should be given -- and if that document has been obtained for that person, and the attempted entry on the basis of the false document has been organised, by an agent who himself has been guilty of fraud for the purpose of enabling that person to enter this country illegally, then the position is the same as it was Reg v Governor of Risley Remand Centre, Ex parte Maqbool Hussain (unreported), 4 May 1976, where the fraudulent passport was presented with the dishonest mind of the entrant himself. It does not make any difference for this purpose that the entrant herself did not know of the breach of the immigration laws which she was in fact committing." A little later Megaw LJ said that there was another way of expressing what he described as "the same point." He referred to the fact that in section 3(1) of the Act of 1971 the leave is stated to be leave "in accordance with this Act," and then continued, at pp 1470-1471: "While leave is no doubt given by the mere formality of the immigration officer granting his leave by stamping or indorsing the passport or other document produced and in allowing the applicant to pass through the immigration barrier, nevertheless that does not mean that the person has not been in breach of the immigration laws in entering. For example, in this case a part of the necessary procedure to be gone through for the purpose of obtaining leave is that which is set out in paragraph 4 of Schedule 2 to the Act of 1971. Paragraph 4(2) requires: 'A person on his examination . . . by an immigration officer shall, if so required by the immigration officer -- (a) produce either a valid passport with photograph or some other document . . .' and so on. In the present case the appellant, innocently, as I am assuming, produced a document which purported to be her passport but which was certainly not 'a valid passport' for the purposes of her application for permission to enter the country. It was a passport of a person other than herself, which the immigration officer was led to believe was a valid passport for the appellant. Though the appellant did not know of the invalidity of the document, she, as we now know, in fact produced an invalid passport. Thus she had failed to comply with that vital part of the provisions in the procedure involving entry. She both sought entry and entered in breach of the immigration laws. . . . The appellant did not enter the United Kingdom with leave to do so 'in accordance with this Act'. She was an 'illegal entrant' within the definition of section 33(1)." It will be observed that in neither of these passages did Megaw LJ refer to the possibility that the husband had committed an offence contrary to section 26(1)(c) of the Act of 1971 by "causing" a false representation to be made to the immigration officer; the husband appears to have been regarded as the "agent" of the appellant. In Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 both Lord Bridge and Lord Wilberforce left open the question whether a person is an illegal entrant if leave for him to enter was obtained by the fraud of a third person. As far as this court is concerned, however, it seems to be me that Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466 remains a binding authority, and it was so regarded by the Court of Appeal in Hiran Khan v Secretary of State for the Home Department [1990] Imm AR 327, 332 and by Hutchison J in Reg v Secretary of State for the Home Department, Ex parte Mohammed Salim [1990] Imm AR 316, 323. Khan [1977] 1 WLR 1466 appears to me to be authority for the proposition that if leave to enter is obtained by the use of a materially false document the entrant is an illegal entrant. A document is materially false if the false information which it contains is material in leading to the decision that leave to enter should be given. It is true that in Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466 the court was concerned with a false passport and that the obligation imposed by paragraph 4(2)(a) of Schedule 2 to the Act of 1971 is to produce a "valid passport" if so required. I am satisfied, however, that the obligation imposed by paragraph 4(2)(b) to produce other documents "specified by the immigration officer" requires, certainly in the case of a document such as a work permit, that the document should be genuine. A work permit is clearly a material document both for the purposes of obtaining leave to enter and for the purpose of determining the conditions of such leave. In this context I can see no satisfactory basis for distinguishing between an invalid passport and an invalid work permit. It follows therefore, on the authority of the decision in Ex parte Khan [1977] 1 WLR 1466 that if leave to enter is given on the basis of a work permit which later proves to be false the entrant does not enter the United Kingdom with leave to do so "in accordance with" the Act of 1971. Moreover, it is clear that the immigration officer would have refused the applicant leave to enter had he known of the invalidity of the work permit at the time of entry: see paragraph 35 of the Statement of Changes in Immigration Rules (HC 251). It is right to remember that a person who has entered with leave is in a stronger position with regard to the burden of proof than a person who is appealing against the refusal by an immigration officer of leave to enter. Lord Bridge explained this distinction in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 122. Thus whereas the immigration officer's discretion to refuse entry can only be challenged on the ordinary grounds on which a court has jurisdiction to review a public law decision, a person who has entered with leave can place the burden of proving that he is an illegal entrant on the immigration officer or the Secretary of State. In the present case, however, the fact that this was not a genuine work permit is no longer in dispute. I am satisfied that the applicant obtained leave to enter by means of a materially false document, that he was not given leave to enter in accordance with the Immigration Act 1971 and that accordingly he entered in breach of the immigration laws. He is an illegal entrant. I do not find it necessary to decide whether he is an illegal entrant for the additional reason that his entry was effected by means of a breach by some third party of section 26(1)(c) of the Act of 1971. I would refuse this application. LEGGATT LJ LEGGATT LJ: I consider that Mr Pannick's primary way of putting the case for the Secretary of State represents the primrose way. It involves an ingenious adaption of Lord Bridge's analysis in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 118D, notwithstanding that his reservation in relation to third party frauds makes plain that he was not envisaging that his reasoning would apply in that differnt context. Mr Pannick's submission is that an entrant unlawfully enters in breach of the immigration laws if a third party has caused him to make a false representation, of the falsity of which he is ignorant, and he is therefore an illegal entrant. I find it hard to contemplate that Parliament had that situation in mind. I prefer the route suggested to Mr Pannick by the court, whilst making suitable allowance for its provenance. A person in the position of the applicant will be denied entry if he has no work permit, just as he would if he had no passport. Mr MacDonald bravely argues that the reference in paragraph 4(2) of Schedule 2 to the Immigration Act 1971 to a "valid" passport indicates that the work permit need not be valid, by which he means that it may be a false document provided that the person producing it does not know that it is. That seems to me to be an extravagant interpretation of the paragraph. When referring to a "valid" passport Parliament presumably meant a passport that is legally acceptable, for example, by being in date. "Valid" is not the antithesis of "false." In my judgment a work permit is in the context of paragraph 4 of Schedule 2 to be equated with a passport. So the principle of Reg v Secretary of State for the Home Department, Ex parte Khan [1977] 1 WLR 1466 applies. That case is binding on us. Accordingly it does not avail the applicant that the document was produced or obtained through the fraud of a third party. Without a work permit the applicant would not have been admitted to the United Kingdom. He did not have a work permit properly so called. But for the fraud of a third party the applicant would not even have had what passed for a work permit. Yet in Mr MacDonald's submission -- "That there should be guilty knowledge before someone is amenable to removal as an illegal entrant is a sound proposition which reflects the severity of the power of removal. Lord Bridge [1984] AC 120E describes the power of arrest and detention as 'draconian.' In these circumstances the applicant submits that the court should be slow to permit the exercise of such powers in respect of those who are innocent of deception or fraud." I see nothing draconian about the removal of a person who ought not to have gained admittance in the first place. Nor do I see any reason why a person who enters with a false work permit should be in any better position than a person who seeks to enter without a work permit at all. Since the leave granted to the applicant on the basis of the false work permit was not granted "in accordance with this Act" within the meaning of section 3(1) of the Act of 1971, the applicant unlawfully entered the United Kingdom in breach of the immigration laws, and was therefore an illegal entrant. I agree that for the reasons given by Neill LJ, upon which mine are but a gloss, the application should be refused.SIR GEORGE WALLER: For the reasons given by Neill and Leggatt LJJ I agree this application be refused. Application refused. No order for costs. Leave to appeal refused. Burton & Burton, Nottingham; Treasury Solicitor.