R v. Secretary of State for the Home Department, Ex parte Mohammed Fazor Ali

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MOHAMMED FAZOR ALI

Queen's Bench Division

[1987] Imm AR 471

Hearing Date: 29 April 1987

29 April 1987

Index Terms:

Returning resident -- immigration officer not satisfied that the passport bearing stamp for indefinite leave had been issued to the applicant -- entry refused -- whether burden of proof was on applicant to prove identity in those circumstances -- whether the principles in Khawaja applied. Immigration Act 1971 s 1(2): HC 169 para 56.

Held:

The applicant claimed to have been settled in the United Kingdom since 1966. On his return to this country from a visit to Bangladesh he was in possession of two passports. One, which had expired in 1983 bore endorsement showing that the holder had been granted indefinite leave in February 1974. There were discrepancies between the descriptions, in the passports, of the bearers; there was also evidence that the photograph in the earlier passport had been substituted. The immigration officer was therefore not satisfied that the applicant had proved his identity or the status he claimed. He was refused entry. On application for judicial review, counsel for the applicant argued that the facts distinguished the case from a normal port refusal. There was a suggestion of a serious criminal offence. Following Khawaja, the burden of proving that the applicant was not the person entitled to the passport lay on the Secretary of State and the burden was heavy. Held: 1. The principles enunciated in Khawaja applied only to those whom the Secretary of State asserted were illegal entrants: those refused leave to enter, as explained in Bugdaycay were in a different class (In R v Secretary of State ex parte Harjit Kaur (CO/188/86: 8 June 1987) McCullough J came to a like conclusion, -- that Khawaja did not apply, -- where a returning resident was refused admission because of deception on first entry. In that case the applicant had first entered the United Kingdom as a minor and as the alleged daugther of parents settled in the United Kingdom. While away from the United Kingdom four years later and following dispute in the "family", she was repudiated and denounced by her alleged parents. On return to the United Kingdom she was refused admission. The learned judge found support in two unreported decisions: re Erkan Kansel (Woolf J, 21 December 1984) and ex parte Kwabena (Webster J, 22 May 1985).) 2. The Immigration officer had not identified the applicant as an illegal entrant. The burden of proving his identity and claimed immigration status was on the applicant. On the facts the decision of the immigration officer could not be faulted on Wednesbury principles. The application would be dismissed. 3. Moreover, following Swati, the applicant's remedy lay in an appeal to an adjudicator: the application failed on that ground as well.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: [1947] 2 All ER 680. R v Secretary of State for the Home Department ex parte Pinky Badwal (unreported, DC, 29 April 1980). Khawaja v Secretary of State for the Home Department [1982] Imm AR 139: [1984] 1 AC 74. Taj Mohd Swati [and Butt] v Secretary of State for the Home Department [1986] Imm AR 88; [1986] 1 All ER 717. Huseyin Bugdaycay and ors v Secretary of State for the Home Department [1987] Imm AR 250; [1987] 2 WLR 606.

Counsel:

S Husain for the appellant; H Kent for the respondent PANEL: Nolan J

Judgment One:

NOLAN J: In this case Mr Fazor Ali moves with leave for orders of certiorari to quash a decision by an immigration officer on 23 August 1985 refusing him leave to enter the United Kingdom as a returning resident, and of mandamus ordering the immigration officer to give Mr Ali leave to enter. The grounds upon which these reliefs are sought are firstly, that on his arrival the applicant produced a valid national passport establishing satisfactorily his identity and nationality and that accordingly the refusal was wrong in both law and fact; secondly, that the applicant is a Commonwealth citizen who was settled in the United Kingdom at the coming into force of the Immigration Act, that he has indefinite leave to enter and remain under section 1(2) of the Act and accordingly the refusal was contrary to paragraph 56 of the immigration rules; and thirdly, that the applicant was returning from a visit to Bangladesh. He had indefinite leave to remain in the United Kingdom when he had left, and he had not been away for longer than two years. So again the refusal it is said was in breach of paragraph 56 of the immigration rules. That paragraph reads as follows: "A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than 2 years." As is stated in the grounds which I have read, the applicant produced a passport when he arrived at Heathrow on 16 August 1985. What has given rise to the refusal of entry in this case is that he produced in addition a second passport. That had been issued in 1973. Endorsed upon it on 28 February 1974 was his indefinite leave to remain in the United Kingdom. That passport expired in 1983 when it was replaced by the current passport. It was the earlier passport which aroused the suspicions of the immigration officers who interviewed the applicant. They were puzzled for example, that the earlier passport described the applicant as being 5ft 3ins in height wheras the latter more accurately described him as being 5ft 9 ins in height. They were dissatisfied with the appearance of the passport photograph. They were also dissatisfied with the answers which the applicant gave to them about his residence in the United Kingdom prior to 1978. The upshot was that leave to re-enter under paragraph 56 of the immigration rules, was refused on the grounds which are summarised in the affidavit of Mr David Kirkman, an immigration officer, sworn on 23 March 1987. At paragraph 13 of that affidavit Mr Kirkman say amongst other things: "From the interviews conducted with the applicant, I was not satisfied that he had lived in this country since 1966 but had probably lived here since 1978 when his medical registration took place. A further examination of the passport issued in 1973 by the Forgery Unit at the Intelligence Unit, revealed that the passport photograph had been substituted and the applicant had therefore assumed the identity of Mohammed Fazor Ali and had used this passport to gain admission as a person settled here knowing that he was not entitled to indefinite leave to enter and was not entitled to settlement in this country.On the strength of this passport the applicant had successfully obtained a correctly issued passport in 1983 in the same identity. Having satisfied myself that the document was not the applicant's and he was therefore not entitled to indefinite leave to enter as a returning resident, I confronted the passenger with the known facts, but he did not admit to any photograph substitution and maintained that he was Mohammed Fazor Ali. Furthermore, he was adamant that he had resided in this country since 1966. As it was necessary for the applicant to prove to me that he was Mohammed Fazor Ali and that he had resided in this country, free of conditions since 1966 and since the 1973 issued passport contained a substituted photograph, I could not be so satisfied as to his real identity nor could I be satisfied that he was entitled to enter as a returning resident. Taking into account these factors with the authority of Chief Immigration Officer, Mr N Wadey, I refused the applicant leave to enter pursuant to paragraph 56 . . ." The crucial issue of fact upon which the refusal was based was whether or not the applicant was indeed the Mohammed Fazor Ali who had resided in this country, as claimed, free of conditions since 1966 and had done so after the Immigration Act came into force pursuant to the indefinite leave to enter endorsed on the 1973 and then on the 1983 passport. Mr Husain has taken me through the various pieces of evidence set out in the affidavit of Mr Kirkman upon which reliance was placed in deciding that the applicant was not the genuine holder of the first passport nor of the right to remain in this country which it conferred. He has submitted that the evidence does not support the view formed by the immigration officer. More crucially, Mr Husain has submitted that the immigration officer applied both the wrong test and the wrong standard of the burden of proof. The immigration officer asked himself whether the applicant had satisfied him, the immigration officer, as indeed paragraph 56 in terms requires, about the critical matters, and returned the answer no. That, submits Mr Husain, was wrong in two respects. In the first place, the burden of proof was not upon the applicant but upon the immigration officer to establish that the applicant was not the person he claimed to be. Secondly, the burden was a heavy one, namely, that laid down in the Khawaja case which was decided by the House of Lords in 1983. I turn now briefly to that case. For present purposes the effect of the decision, which was concerned with a decision to deport an illegal entrant, can I think sufficiently be taken from the third entry in the head-note as to what was held by the House of Lords. I take it from [1984] 1 AC 74, which is in substantially the same terms as the head-note in the All England Reports to which Mr Husain referred me. What was said was this: "(3) That on an application for judicial review of an order detaining a person as an illegal entrant it was for the executive to prove to the satisfaction of the court on the balance of probabilities the facts relied on by the immigration officer as justifying his conclusion that the applicant was an illegal entrant." At page 97 of the report, Lord Fraser said: "With regard to the standard of proof, I agree with my noble and learned friend, Lord Scarman, that for the reasons explained by him, the appropriate standard is that which applies generally in civil proceedings, namely proof on a balance of probabilities, the degree of probability being proportionate to the nature and gravity of the issue. As cases such as those in the present appeals involve grave issues of personal liberty, the degree of probability required will be high." Mr Husain submitted this was not an ordinary case of a port refusal. It was a refusal of entry to a man who admittedly had spent at least some seven years in this country and who had been away for a comparatively short time. Further, said Mr Husain, although this is not in terms a Khawaja case of a decision to deport an illegal entrant, the substance of the allegation against Mr Ali is that he has been travelling to and fro on a forged passport; that he is guilty of a criminal offence; and as a consequence of the refusal his liberty as an individual was at once threatened. Indeed I am told he was in fact detained, as those who are refused entry are liable to be, for a period before being granted the temporary admission which he now has. The views expressed by their Lordships in the Khawaja case were of course at variance with a considerable body of earlier authority. Until then the opinions of a number of eminent judges had been to the effect that similar principles should apply to refusal of entry as to the treatment of those who had entered the country and spent some time in it and were therefore to be subject, if the decision of the immigration officer stood, to arrest and deportation. Lord Bridge, however, in giving his speech in their Lordships' House had this to say -- I begin my reading from his speech at page 121 F of the report-- " . . . perhaps the most colourful expression of the argument which can be advanced in support of the prevailing doctrine is to be found in the judgment of Lord Lane CJ in the Divisional Court in R v Secretary of State for the Home Department, ex parte Pinky Badwal (unreported), April 29, 1980, where he said: 'No distinction can properly be drawn between a person who is discovered at the airport trying to enter illegally and a person who by skill, fraud and deceit manages to get past the immigration officer at the airport and is then interviewed that night by the immigration officer in his hotel, the immigration officer by that time having gathered the necessary information of the fraud or deceit. There can be no possible distinction in principle between these two situations . . .' It appears to me with every respect, that all these approaches rely upon the statutory juxtaposition of the immigration officer's power to refuse leave to enter and thereupon to order removal of the unsuccessful aspiring entrant with his power to order removal of an illegal entrant after entry as a ground for assimilating the principles by which the two powers are governed. The somewhat improbable illustration chosen in the last passage cited to justify the assimilation is, I say with all due deference, calculated to obscure and minimise the real and important differences betwen the two powers. Whenever a non-patrial comes from abroad he needs leave to enter the United Kingdom and the decision whether or not such leave should be granted is fairly and squarely committed to the immigration officer by the statute. This necessarily entrusts all relevant decisions of fact, as well as the application to the facts of the relevant rules and any necessary exercise of discretion, to the immigration officer. If leave to enter is refused, that decision can plainly only be challenged on the now familiar grounds on which the court has jurisdiction to review a public law decision committed by statute to an administrative authority. Following a refusal of leave to enter there can be no successful challenge to a consequential order for detention and directions for removal unless the refusal of leave to enter can itself be successfully impugned. But the detention and removal of a non-patrial resident in this country, who may or may not be a British subject, who may have been here for many years and who, on the face of it, enjoys the benefit of an express grant of leave to be here, on the ground that he is an illegal entrant, seems to me to be dependent on fundamentally different considerations. A person seeking leave to enter requires a decision in his favour which the immigration officer alone is empowered to give. The establiehd resident who entered with expressed permission enjoys an existing status of which, so far as the express language of the statute goes, the immigration officer has no power whatsoever to deprive him. My Lords, we should, I submit, regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on. The fact that, in the case we are considering, detention is preliminary and incidental to expulsion from the country in my view strengthens rather than weakens the case of a robust exercise of the judicial function in safeguarding the citizen's rights." The matter was carried further by Lord Bridge this year in the case of ex parte Bugdaycay [1987] 2 WLR 606. At page 611 B Lord Bridge said, in dealing with the argument for the appellants, that the Secretary of State needed to satisfy the court on a balance of probabilities that a person claiming asylum was not a refugee before the decision to remove him from the country could be affirmed. At letter E Lord Bridge said: "The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the immigration officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by section 4(1) of the Act. The question whether an applicant for leave to enter or remian is or is not a refugee is only one, even if a particulary important one required by paragraph 73 of HC 169 to be referred to the Home Office, of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bona fide visitor, student, businessman, dependant etc. Dgetermination of such questions is only open to challenge in the courts on well known Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in Khawaja's case the court's fundamentally different approach to an order for removal on the ground of illegal entry is dictated by the terms of the statute itself, since the power of direct removal under paragraph 9 of schedule 2 is only available in the case of a person who is in fact an 'illegal entrant'." This latter passage seems to me to resolve an issue which I confess has puzzled me and which even after the Khawaja case seemed to me to be one which, if I may say so, would benefit from further clarification. As now stated by Lord Bridge, the law provides a clear basis for distinguishing those cases in which the Khawaja approach is to be adopted from those in which it is not. The attitude taken by the immigration officer in this case comes close to that of an officer alleging that the applicant is an illegal entrant, but that is not the decision which the immigration officer has reached nor one which under the immigration rules he was required to reach or to consider. The terms of paragraph 56 are clear and do seem to me clearly to leave the burden of proof upon the applicant. Further, they clearly require from the court asked to consider the lawfulness of the immigration officer's decision the adoption of the Wednesbury test and not the Khawaja test. When that decision of principle has been reached, in my judgment, the result of the present case necessarily follows. If this were one in which the Khawaja test had to be applied in favour of the applicant there would be force in Mr Husain's submission that the evidence before the court was not strong enough. Holding as I do, however, that the Wednesbury test is the appropriate test, I am quite unable to regard the immigration officer's decision in this case as being unjustified, irrational or, as it is sometimes said, outrageous in such a way as to fail the test propounded in Wednesbury. For this reason alone the application, in my judgment, must fail. I would add, however, that since leave was granted by Woolf J, as he then was, in the present case in 1985, it has been made clear by the Divisional Court and by the Court of Appeal in R v Secretary of State for the Home Department, ex parte Swati and R v Secretary of State for the Home Department, ex parte Butt [1986] 1 All ER 717, that only in exceptional circumstances is an applicant such as Mr Ali to be permitted to pursue his claim for relief by way of judicial review rather than by way of appeal under the normal provisions of the Act. It is of course well-known and was fully recognised in Swati and Butt that the appeal allowed by the Act has a grave disadvantage to the appellant in that it has to be conducted from abroad, but that is the plainly expressed will of the legislature. There are no circumstances in the present case which would qualify it for being regarded as an exception to the general Swati principle. On that ground too, therefore, this application is, in my judgment, fatally flawed and I must refuse it.

DISPOSITION:

Application dismissed

SOLICITORS:

BC Mascarenhas, London, N22; Treasury Solicitor