R v. Immigration Appeal Tribunal, Ex parte Anilkumar Ravindrabhai Parel
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 4 December 1986 |
| Citation / Document Symbol | [1987] Imm AR 164 |
| Cite as | R v. Immigration Appeal Tribunal, Ex parte Anilkumar Ravindrabhai Parel, [1987] Imm AR 164, United Kingdom: High Court (England and Wales), 4 December 1986, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6a14.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v IMMIGRATION APPEAL TRIBUNAL ex parte ANILKUMAR RAVINDRABHAI PATEL
Queen's Bench Division
[1987] Imm AR 164
Hearing Date: 4 December 1986
4 December 1986
Index Terms:
Deception -- whether an earlier deception on entry may ground a subsequent refusal of re-admission to the United Kingdom -- HC 169 paras 12, 13(c), 76, 85.
Legitimate expectation -- whether the grant of a re-entry visa at the time when deception on earlier entry was known gave rise to a legitimate expectation on the part of the applicant that he would be re--admitted to the United Kingdom on the basis of that visa. HC 169 para 10.
Stateless person -- whether a stateless person could rely on the Convention as a ground for re-admission to the United Kingdom -- United Nations convention relating to the status of stateless persons, 1954, art 31.
"Conducive to the public good" -- whether the phrase has a different meaning in deportation cases and cases where admission is refused. Immigration Act 1971 s 3(5)(b): HC 169 paras 13(c) 76,85.
Held:
The applicant was a stateless person, a Ugandan Asian. In 1975 his family applied for special vouchers. They were then living in India and the applicant, an unmarried son, was included in the application. The vouchers were granted in 1980. By that date the applicant was married. The issuing officer in 1980 required confirmation of the family details supplied in 1975. The appplicant's marriage was concealed. He was granted admission to the United Kingdom on the basis that he was unmarried. The deception was discovered in 1982. He was detained as an illegal entrant for some time but those proceedings were then abandoned: he was put on notice that he remained liable for deportation. Meanwhile, in order to go to India for a visit he applied for and was granted a re-entry visa. When he sought to re-enter the United Kingdom however, he was refused admission on the ground that his exclusion was conductive to the public good. His appeals to the adjudicator and the Tribunal were dismissed. On application for judicial review it was argued that the original deception in entry, following Khawaja could not ground subsequent exclusion as conductive to the public good. It was also argued that, following Asif Mahmood Khan, the appellant had a legitimate expectation, having been granted a re-entry visa when his original deception was already known, that he would be re-admitted. Counsel also relied on the Convention on stateless persons to suport the contention that the applicant should not be excluded from the United Kingdom. Held: 1. Following the dicta of Lord Bridge in Khawaja and the ratio of Ghazi Ali Khan, deception to entry alone could not ground exclusion on the basis that it would be conducive to the public good. 2. The phrase "conducive to the public good" had the same meaning wherever used in the 1971 Act and the rules. No distinction in meaning could be drawn between its application to deportation cases and cases involving admission to the United Kingdom. 3. Following Asif Mahmood Khan the applicant, in the events which had happened, had a legitimate expectation that he would be re-admitted to the United Kingdom. 4. The applicant could not rely on the Convention on stateless persons. The convention was not part of English law and, in any event, the relevant article protected only those who at the material time were lawfully within a state, which the applicant had not been.Cases referred to in the Judgment:
Khawaja v Secretary of State for the Home Department [1982] Imm AR 139. R v Immigration Appeal Tribunal ex parte Cheema and ors [1982] Imm AR 124. R v Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan [1983] Imm AR 32. Gowa and ors v Attorney-General (unreported, CA 20 December 1984). Asif Mahmood Khan v Immigration Appeal Tribunal [1984] Imm AR 68. R v Immigration Appeal Tribunal ex parte Owusu-Sekyere [1986] Imm AR 169.Counsel:
A Collins QC and V Kothari for the applicant; N Pleming for the respondent PANEL: Taylor JJudgment One:
TAYLOR J: This is an application for judicial review by Anilkumar Rajindrabhai Patel. He seeks to challenge the determination of the Immigration Appeal Tribunal, dated 24 October 1984. On that date the Tribunal dismissed his appeal from the determination of an adjudicator, which in turn had dismissed his appeal against the refusal of re-entry to the United Kingdom by the chief immigration officer on 23 March 1984. The applicant is a Ugandan Asian. He was born in June 1955. His parents were, at that time, both citizens of the United Kingdom and Colonies and are now described as British Overseas Citizens. The family left Uganda (it is not quite clear whether that was in 1960 or 1972) and they went to India with a view ultimately to coming to the United Kingdom. The applicant's father applied for a quota voucher for himself and his family in 1975 to come to the United Kingdom. At the time that application was made this applicant was still a single man. Unhappily it took several years, until 1980, for the application to bear fruit. By that time the applicant was no longer single; he had been married on 25 July 1978 and there was a child. The authorities required confirmation of the particulars which had been filed in 1975 and at that time, in 1980, this applicant falsely confirmed to the entry clearance officer that he was a single man. By that fraud he was granted clearance. On 25 May 1981 he arrived in the United Kingdom where he was given leave to enter. He travelled on an identity certificate issued by the Indian Government because he was, and is, a stateless person. His entry was permitted on the basis of his being granted indefinite leave. On 1 December 1981 he decided to go to India for a holiday. Whilst he was in India his wife, who had remained there, applied to join him in England with the child. In January 1982 he returned to the United Kingdom. He was allowed in as a returning resident and the deception that he had originally practised was still undiscovered. However, it came to light as a result of investigations into his wife's application to join him in July of 1982. As a result of the discovery of the deception the authorities in the United Kingdom decided at first that the proper course was to serve notice upon the applicant that he was an illegal entrant. That notice wsa served and he was detained as an illegal entrant for some months. However, for reasons which have not been fully explained and which are irrelevant, it was decided in September of 1983 to abandon that approach and to withdraw the notice that had been issued to the applicant that he was an illegal entrant. That was on 28 September 1983. The way in which it was done was by letter, which was addressed to the applicant's Member of Parliament who had supported his case, in these terms:"I wrote to you on the 9th August regarding Mr Patel . . . who was at that time detained as an illegal entrant. This is to let you know that the notice referred to has been withdrawn and Mr Patel has been released from detention. However, his position here is now being considered further with a view to his possible deportation. Mr Waddington will send you a full reply when a decision has been reached."
Very shortly after that letter was written the applicant decided to make a visit to India and in October of 1983 he applied for a visa. It was necessary for him to have a visa to go and return because of his statelessness. That was required by reason of rule 10 of HC 169. The visa was issued to him on the 12th October and it was expressed to be valid for re-entry until August of 1984. The whole case for this applicant is really based upon that document issued, so it is said on the applicant's behalf, in full knowledge of the deception which had been practised at the time of the applicant's original entry. He went to India and in March of 1984 he sought to return, armed with his visa. He arrived on 3 March and was given temporary admission by the immigration officer. He was interviewed on 23 March and on the same day a decision was made to refuse him entry. From that refusal he appealed to the adjudicator and on 3 May 1984 his appeal was heard. He gave evidence and was cross-examined and on 18 May 1984 the adjudicator dismissed his appeal. On 1 June 1984 he applied for leave to the Immigration Appeal Tribunal and was granted leave. His appeal was heard on 5 September of 1984 and on 24 October 1984 it was dismissed. The challenge is to that dismissal of his appeal by the Tribunal. The grounds upon which the applicant was refused re-entry on the 23 March 1984 were stated in these terms:"You have sought leave to enter on the ground you had an indefinite leave to remain in the United Kingdom when you left, and you have not been away for longer than two years but this is not conclusive in your favour. You hold a current visa endorsed for journeys to the United Kingdom but I am satisfied that the leave to enter given on the 25 May 1981 and the settlement visa given on the 6 April 1981 were obtained by deception and in the light of this I consider that your exclusion from the United Kingdom is conducive to the public good."
Those last words derived, in this case, from paragraph 85 of HC 169. It is perhaps convenient, before looking at the rules which are most relevant in this case, simply to mention that it was not disputed on this hearing the effect of the applicant's departure armed with his visa to India in October 1983 would be to cause his indefinite leave to lapse pursuant to section 3(4) of the Immigration Act 1971. That would bring rule 56 of HC 169 into play and under the second sentence of that rule it is provided:"Any other passenger returning to the United Kingdom from overseas . . . 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 two years."
Hence the reference in the reasons for refusal to the fact that he had leave when he left and had not been away for longer than two years. It is now necessary to look at the group of rules which have been described by Mr Pleming as a circular group and which apply in this case. They are rules 12, 13(c), 85 and 76. Rule 76 brings us back to 13(c). Rule 12 without citing its full terms, provides that a visa of the kind issued to this applicant constitutes or must be regarded as an entry clearance. Rule 13(c), so far as is relevant, provides as follows: "A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the immigration officer is satisfied that:. . .
refusal is justified. . . because exclusion would be conducive to the public good." The scope of the power to refuse leave to enter on these grounds is set out in paragraph 85. So far as is relevant that paragraph, under the heading Exclusion Conducive to the Public Good, reads as follows:"Any passenger . . . may be refused leave to enter on the ground that his exclusion is conducive to the public good, where . . . (b) from information available to the immigration officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter."
Then one must look at rule 76 which, so far as is relevant, reads as follows:". . . the immigration officer has power to refuse leave to enter on any of the grounds set out in paragraph 85 . . . Leave to enter may be refused if, for example . . . false representations have been employed or material facts not disclosed . . . for the purpose of obtaining an entry clearance, or if a previous leave to enter or remain had been obtained by deception. But a passenger who holds a current entry clearance is not to be refused leave to enter except in the circumstances described in paragraph 13."
One then goes back to 13(c) which refers one back to paragraph 85, hence the observation of Mr Pleming that this group of rules, is in effect, circular in its operation. Essentially the case of Mr Collins, appearing on behalf of the applicant, is that it is true the applicant has been guilty of deceptions on entering the United Kingdom in May of 1981. He was treated for a while as an illegal entrant on that account but then the authorities withdrew the notice. He was granted the re--entry visa on 12 October 1983 at a time when his deceptions were fully known and, therefore, it was wrong to prevent his re-entry in March 1984. The case is put in two ways; firstly, Mr Collins says the ground that exclusion is conducive to the public good was not open to the immigration officer in this case; and secondly, he relies upon estoppel or alternatively legitimate expectation arising from the grant of the re-entry visa. As to the first submission Mr Collins claims the phrase "conducive to the public good" must bear the same meaning wherever it appears in the immigration statutes or rules. He then relies on case law as to its interpretation. In R v Cheema and ors [1982] Imm AR 124, the Court of Appeal had to consider the phrase as it occurred in section 3(5)(b) of the Immigration Act 1971 in relation to deportation. There the appellants entered into marriages to evade the immigration laws. Lord Lane CJ giving the judgment of the Court, summarised their argument that the subsection was aimed at persons who were public menaces and could not be used to catch a mere deceiver. He went on at page 131:"I disagree. Marriage is still, like it or not, one of the cornerstones of our society, despite recent trends of behaviour. If a person chooses to use a ceremony of marriage of the status simply by a dishonest and deceitful way of avoiding the law -- the immigration law or any other law -- then I consider it properly open for the Secretary of State to come to the conclusion that that person's continued presence in this country is not conducive to the public good."
Each of the three appellants in that case had committed his deception after entry and whilst in the United Kingdom by leave. However, Mr Collins relies on Khawaja v Secretary of State for the Home Department [1984] AC 74, which had not been decided when the Court of Appeal considered the case of Cheema and others. Lord Bridge gave the leading speech, with which the majority of their Lordships agreed. At page 117 he said:"The power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in section 15(3) . . . [Immigration Act 1971] . . . that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature' -- although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry. On the other hand, no one has suggested in argument that a non-patrial who has obtained leave to enter by fraud should not be liable to expulsion when the fraud is exposed, nor doubted that one would expect the Act to provide for such a case. That provision, I conclude, has to be found if anywhere, in the statutory machinery for the removal of an illegal entrant."
Khawaja was followed in R v The Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan [1983] Imm AR 32, where Stephen Brown J (as he then was) had to deal with another deportation case. The applicant had entered into a marriage of convenience after entering the United Kingdom with limited leave. He had also told some lies at the time of the original entry but was admitted after some hesitation. Argument in the case sought to distinguish deception at time of entry from deceptions after entry. At page 38 the learned judge said: "As a result Mr Pannick submits, firstly, that in so far as the Tribunal purported to make their decision upon the deception to obtain entry having regard to the decision of the House of Lords in Khawaja and I should say more particularly having regard to the opinions of Lord Bridge and the directive Lords of Appeals relting to the question of the applicability of section 3(5)(b), it is not a matter which can properly give rise to the making of a deportation order under that section. It is right that I should say that the case of Khawaja was concerned specifically with an illegal entrant and that the opinions of Lord Bridge and the other Lords of Appeal relate to a matter which was not specifically before the House for decision. However, it is urged upon me that it is a very powerful dictum indeed and is something that this court would have to have regard to."I accept that submission and upon the basis of Lord Bridge's dictum to which I referred I feel bound to hold that the matters which were concealed and which were the subject of lies at the time of entry cannot found the power to issue deportation order under this particular provision of the Immigration Act, sections 3(5)(b). So far as the deceptions after entry are concerned, I am satisfied that when analysed the matter of complaint comes down to an allegation of a 'marriage of convenience'. Although the phrase is not used as a term of art, in my judgment the wording of the deportation order ('having regard to the circumstances of your marriage to Shameemara Rehman on 31 May 1978 the Secretary of State considers that it is conducive to the public good to deport you') can have no other meaning. In my judgment it is not open to the Secretary of State to issue a deportation order because a man may have entered into a marriage simply with improper motives."
Finally, I must refer to the decision of Mann J in R v The Immigration Appeal Tribunal ex parte Owusu-Sekyere, 13 March 1986, as yet unreported. (See now [1986] Imm AR 169). That was also a deportation order case in which the deception was practised after entry. Mann J reviewed the cases I have cited. After quoting Lord Bridge in Khawaja he said, at page 10 D of the transcript: "Mr Riza relies upon that passage as limiting the scope of the power under section 3(5)(b) and he says that, in terms, Lord Bridge is dealing with the person who made a fraudulent statement to obtain entry and that there is no distinction between that case and a case such as the present where the fraudulent statement, if one there was, was made after entry and with a view to obtaining settlement."Stephen Brown J (as he then was) in R v Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan . . . said at page 38: 'So far as deceptions after entry are concerned, I am satisfied that they can in law justify proceeding under section 3(5)(b).' The learned judge does not give any reason for his satisfaction or as to how one distinguishes between pre and post-entry conduct."
Mann J then went on to the case of Cheema in some detail. At page 12 H he said:"That is a decision, binding upon me, which is against Mr Riza. True it is that it antedates the decision in Khawaja by about one month. It is also true that what was there concerned was a marriage, whereas what we are here concerned with is an allegedly deceitful statement. I cannot distinguish between a marriage for the purpose of obtaining some form of settlement and a deceitful statement for the purpose of obtaining some form of settlement. Each is aimed at an evasion of the law and the rules. Each was a case concerning post-entry activity. I propose to follow the decision in Cheema. It may be for consideration elsewhere and hereafter whether Cheema can stand with the observations of Lord Bridge in Khawaja, or whether the observations of Lord Bridge are confined, as Stephen Brown J thought they were, to statements made upon entry. It may be that that is the case because Lord Bridge refers to the respectable resident, that is to say the person who as a resident, has been respectable, although guilty possibly of fraud upon entry. If that be the case then it could be said in relation to this applicant or indeed any other applicant who is guilty of deceit after obtaining entry, that they are not respectable residents. I accordingly hold that it was within the scope of the Secretary of State's powers to make a deportation order in this case. It is common ground that the onus of supporting the deportation order before the tribunal is on the Secretary of State. It is also common ground that the onus has to be discharged upon a higher degree of probability."
In the present case there is no dispute that the applicant's only deception was that which he used to gain entry in 1981. Accordingly, Mr Collins says the principle in Khawaja applies despite Mann J's reservations as to whether it would extend to deceptions after entry. Mr Pleming contends that Lord Bridge's observations in Khawaja were obiter and in any event they related to deportation. He said different criteria may apply for admission. For the reasons stated by Stephen Brown J I consider I should follow the dicta of Lord Bridge. Moreover, I see no reason to apply different criteria in considering the phrase "conducive to the public good" in regard to entry as opposed to deportation. Mr Pleming went so far as to suggest Lord Bridge, and therefore by inference the majority of the House of Lords, had misunderstood section 15(3) of the Immigration Act. He says this because the examples Lord Bridge gave from that subsection of possible reasons for deportation on the grounds that it was conducive to the public good were simply the cases where no appeal lies. However, Lord Bridge cited them only as examples of reasons and expressly said they were not exhaustive. Since the only basis for the immigration officer's decision here was the applicant's deception regarding his status on original entry it follows that that decision was contrary to law. Neither the adjudicator nor the Immigration Appeal Tribunal appear to have addressed their minds to this point. That would be sufficient to decide this case. However, Mr Collins submits, secondly, that the grant here of the visa estopped the authorities from raising on re-entry any misconduct of which they were aware when the visa was granted. There is no dispute that an estoppel can bind the Crown. (See Gowa and ors v The Attorney General decided by the Court of Appeal on 20 December 1984). The argument here is that there was no obligation on the authorities to grant the visa. They were apparently considering deportation at the time, having abandoned their notice of illegal entry and were, therefore, fully aware of the applicant's deceptions. By issuing a visa in that knowledge, equivalent to a clearance certificate, they were binding themselves to render the applicant eligible for re-entry subject only to any fresh considerations arising. Put another way Mr Collins says the applicant on receiving the visa had a legitimate expectation that his re-entry would not be blocked by any matters known at the time of its issue. He cites in support of that approach the decision in R v Secretary of State for the Home Department, ex parte Asif Mahmood Khan [1984] 1 WLR 1337. In my submission that argument is well founded. The matter can be tested in this way. On the authority of Khawaja the immigration authorities ought to have proceeded against this applicant, if they wished to proceed, as an illegal entrant. They did so for a while but then they chose to abandon that. Mr Pleming conceded that in those circumstances if Mr Collins submissions as to the effect of Khawaja are correct, although the letter of 28 September 1983 spoke of deportation being considered, in fact, no such deportation could take place. It would be, in my judgment, Machiavellian and unconscionable in the extreme if the authorities, by their own voluntary act of abandoning the illegal entry proceedings and leaving themselves, therefore, with no way of deporting this applicant, could achieve it by a stratagem. The stratagem would be to grant him the favour of a re-entry visa and then when he re-presented himself refuse to admit him on the grounds that he had shown himself to be a deceiver originally and, therefore, it was not conducive to the public good that he should be admitted. Viewed in that way it seems to me that there is force in Mr Collins' alternative submission and I would rule that he is entitled to succeed on that in addition to his first point. He did raise one other argument which, for the sake of completeness in case this matter goes further, I should mention and that was the applicant's statelessness. The way in which he puts it is somewhat qualified. He accepts that the Convention on the Status of Stateless Persons is not part of municipal law. Nevertheless, he points to Article 31 of the Convention which is in these terms:"The contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order."
Clearly one of the issues was as to whether this applicant could be said to be lawfully in the United Kingdom at the time when the decision not to allow him entry was made. Without going into detail on this , I would prefer the argument of Mr Pleming that it could not properly be maintained the applicant was lawfully in the United Kingdom at that time. In any event, as Mr Pleming further points out, the heading of Article 31 relates to expulsion and indeed the relevant article itself, as relied upon by Mr Collins, has a prohibition against expelling a stateless person. Here the whole question was not whether the applicant should be expelled on 23 March 1984 but whether he should be admitted. In any event Mr Collins put the matter no higher than that statelessness was a matter which ought to be taken into account as a factor in reaching a decision by the Immigration Appeal Tribunal and it seems not to have been taken into account. Mr Pleming on that aspect of the case points out that the matter does not seem to have been raised with the Immigration Appeal Tribunal and, therefore, it is not surprising that it was not taken into account. Were this case to turn on the argument based on statelessness I should be against the applicant, but for the reasons I have already given I accede to the arguments which Mr Collins has addressed on the question of conducive to the public good and on the estoppel or legitimate expectation points. For those reasons this application succeeds and the decision of the Immigration Appeal Tribunal must be quashed.