Sattar v. Secretary of State for the Home Department
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 1 December 1987 |
| Citation / Document Symbol | [1988] Imm AR 190 |
| Cite as | Sattar v. Secretary of State for the Home Department, [1988] Imm AR 190, United Kingdom: Court of Appeal (England and Wales), 1 December 1987, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6b928.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. |
Sattar v Secretary of State for the Home Department
Court of Appeal (Civil Division)
[1988] Imm AR 190
Hearing Date: 1 December 1987
1 December 1987
Index Terms:
Returning resident -- refusal of admission -- original entry secured by deception -- not treated as illegal entrant but refused admission under paragraph 76 of the immigration rules -- port refusal -- burden and standard of proof in Khawaja do not apply. Immigration Act 1971 ss 3(4), 4(1), 4(2)(c), 13(1), 13(3), 33(1): sch 2 paras 8(1), 8(2), 9, 10, 16(2); HC 169 paras 56, 76.
Judicial review -- where a port refusal is made and an appeal lies to the appellate authorities, judicial review will only be granted where the decision can be faulted on Wednesbury principles.
Held:
Appeal from Farquharson J. The appellant had been admitted for settlement as the son of his sponsor settled in the United Kingdom. He returned to Bangladesh for a short period. On his return he sought leave to enter under HC 169 paragraph 56 as a returning resident. On enquiry the immigration officer concluded that he was not the son of the sponsor: his original leave to enter had been secured by deception. Accordingly leave to enter was refused under the provisions of HC 169 paragraph 76. His removal was ordered to Bangladesh. On application for judicial review it was contended that the conclusion of the immigration officer amounted to characterising the appellant as an illegal entrant: thus the burden of proof lay on the Secretary of State and the standard of proof was high, per Khawaja. The learned judge at first instance concluded that it was not an "illegal entrant" case, to which Khawaja applied, but a "port refusal" case. The conclusions of the immigration officer could accordingly be attacked only on Wednesbury principles and the facts did not support such an attack. In the Court of Appeal those arguments were repeated and it was contended that there was a conflict between paragraphs 56 and 76 of HC 169. Held: 1. The immigration officer acted under paragraph 8(1) of sch 2 of the 1971 Act, not under paragraph 9 of that schedule. The appellant was not therefore treated as an illegal entrant (although if the case for the Secretary of State were valid he was one). It was a 'port refusal' case. 2. Accordingly the criteria laid down in Khawaja as to the burden and standard of proof did not apply. Before the Court the only challenge could be on Wednesbury principles, Swati followed. 3. There was no conflict between paragraphs 56 and 76 of HC 169: the latter rule merely qualified the earlier.Cases referred to in the Judgment:
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: [1947] 2 All ER 680. Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte John Osei Kwabena (unreported, QBD 22 May 1985). R v Secretary of State for the Home Department ex parte Mohammed Yacoub (unreported, QBD, 4 November 1985). Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88: [1986] 1 WLR 477. R v Secretary of State for the Home Department ex parte Dhirubhai Patel [1986] Imm AR 515. R v Secretary of State for the Home Department ex parte Shorzan Bibi and anr [1987] Imm AR 213. Bugdaycay and ors v Secretary of State for the Home Department [1987] AC 514: [1987] Imm AR 250: [1987] 2 WLR 606.Counsel:
KA Quddus for the appellant; NP Pleming for the respondent PANEL: Slade, Balcombe, Stocker LJJJudgment One:
SLADE LJ: This is an appeal by Mr Abdus Sattar from an order Farquharson J made on 3 March 1987 whereby he dismissed an application by Mr Sattar for judicial review. The relief sought by the applicant was an order of certiorari to quash a decision of an immigration officer at Heathrow Airport on 8 May 1985 refusing the applicant leave to enter the United Kingdom and directing his removal and, secondly, an order of mandamus requiring the Secretary of State for the Home Department to grant the applicant leave to enter the United Kingdom as a returning resident. I will take the basic facts largely from the judgment of the learned judge. The applicant is a citizen of Bangladesh. On 13 June 1980 at the age of 21 he entered the United Kingdom. He claimed that he was a dependent son of a man called Abdus Salam who had been in this country for some years already. On the basis of these representations he was admitted to the United Kingdom and was given leave to enter for an indefinite period. For some years he remained with Abdus Salam working in this country. Then in 1984 he left the United Kingdom and returned to Bangladesh, from where he originally came. On 8 May 1985 he presented himself at Heathrow Airport and sought leave to enter as a returning resident under rule 56 of the Immigration Rules contained in the House of Commons Paper 169. This rule states that: "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 two 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 two years." The applicant relied on the second sentence of this rule. However, the provisions of this rule are qualified by rule 76 which, so far as material, states: "Except as provided for in paragraph 73, the fact that a passenger satisfies the formal requirements of the foregoing provisions of these rules is not conclusive in his favour. Leave to enter may be refused if, for example, the passenger has not observed the time limit or conditions imposed on any grant of leave to enter or remain; if, whether or not to his knowledge, false representations have been employed or material facts not disclosed orally or in writing, for the purpose of obtaining an entry clearance; or if a previous leave to enter or remain has been obtained by deception." While the applicant was being interviewed by an immigration officer on 8 May 1985, according to the immigration officer's evidence, the applicant admitted that he was not in fact the son of Abdus Salam but that he was the son of a man called Idris Ali, Idris Ali being, on the evidence before us, a person who had never left the Indian sub-continent. If that was the case, the applicant's previous leave to enter obtained in 1980 would have been "obtained by deception" within the meaning of rule 76. On the same day the applicant was invited to sign, and did sign, a written admission to the same effect. On the occasion of his arrival on that day, 8 May 1985, he was met at the airport by a young man called Abdul Kabir, who was indeed a son of Abdus Salam and claimed to be the applicant's brother. However, during the course of a separate interview by another immigration officer, Abdul Kabir admitted that the applicant was not the son of Abdus Salam but that he was the son of Idris Ali. On 8 May 1985 the immigration officer accordingly refused the applicant leave to enter and directed his removal to Dhaka. The written notice of refusal of leave of that date was addressed to the applicant (page 5 of our bundle) and so far as material stated as follows: "You have sought leave to enter on the ground that you had an indefinite leave to enter/remain in the United Kingdom when you left, and that you have not been away for longer than 2 years, but this is not conclusive in your favour. I am satisfied that the leave given on 13.6.80 was obtained by deception. I therefore refuse you leave to enter in accordance with paragraph 76 of the Statement of Immigration Rules HC 169. I therefore refuse you leave to enter the United Kingdom. A. I have given/propose to give directions for your removal at 2120 hrs on 9.4.85 by ship/aircraft BA 145 to (country/territory) Bangladesh (Dhaka). B. You are entitled to appeal against refusal of leave to enter but only after you have left the United Kingdom. Any such appeal will be considered by the independent appellate authorities established for the purposes of the Act." In relation to paragraph B reference was made in a footnote to section 13(1) of the Immigration Act 1971 which gives a person who is refused leave to enter the United Kingdom the right to appeal to an adjudicator. However, section 13(3) provides: ". . . a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit." As at 8 May 1985 the applicant, if he was to avail himself of the appeal procedure provided for by section 13, could only do so from outside this country. Accordingly, on 28 May 1985 the applicant made an application for leave to apply for a writ of habeas corpus and for judicial review seeking the relief which I have already stated. The grounds of his application were stated very briefly as follows: "The applicant is not an illegal entrant and no deception was made. Therefore the Immigration Officer has no Authority to refuse leave to enter." On 7 June 1985, we have been told, Taylor J adjourned the application for a writ of habeas corpus. On 24 June 1985 the applicant was released from detention. On 5 July Forbes J granted leave to apply for judicial review. If the admissions made by the applicant and by Abdul Kabir to the immigration officers were to be taken at their face value, the grounds set out in the application for judicial review would clearly have no substance; leave to enter could properly have been refused by virtue of rule 76. However, affidavits were filed in support of the application in which in effect it was alleged that the oral and written admissions obtained from the applicant and the oral admission obtained from Abdul Kabir had been procured by bullying and threats on the part of the immigration officers. These allegations were denied in evidence submitted on behalf of the Secretary of State. By the time that the application first came before Farquharson J on 2 March 1987 a number of affidavits had been sworn on both sides. As the learned judge said, the two opposing accounts presented a sharp issue of fact. When the case first came on for hearing before him, an application was made that it should be adjourned so that the deponents to the various affidavits could attend in court and be examined and cross-examined. It was submitted to the learned judge that, when the applicant sought leave to enter this country on 8 May 1985, the immigration officers were treating him as an illegal entrant. On the authority of the decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74, it was accordingly argued that it was the duty of the court to resolve the factual issues to see if the immigration authorities had been right so to treat him. The learned judge accepted that, if this had been what he called "an illegal entrant case" as opposed to a "port refusal case", it would have been his duty to resolve the factual issues. However, he decided that it was not a case falling within the category of illegal entrant cases. Accordingly, on 2 March 1987 he refused the application for an adjournment for the purpose of cross-examination. On the next day, in his judgment on the substantive application, he decided that, this being a port refusal case, his task was merely to see whether there were grounds upon which the immigration officer could reasonably have come to the conclusion which he did reach. Having decided that there were ample grounds upon which the immigration officer could decide to refuse entry, he rejected the application, holding that the application for judicial review was not apt. In the notice of appeal which is before us one ground and one ground only is put forward, namely: "The Learned Judge was wrong in dismissing the Application for Judicial Review on the basis that it was a 'Port of Entry Refusal Case' and not a case falling within the principles laid down in the case of Khawaja." I have come to the same conclusion as did the learned judge, that this is not a case falling within the Khawaja principles for reasons which I will now attempt to explain. Section 4(1) of the Immigration Act 1971 ("the 1971 Act") provides that the power under the Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers. Section 4(2)(c) provides that the provisions of schedule 2 to the Act shall have effect with respect to: "(c) the exercise by 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 or entering or remaining unlawfully". Paragraph 8(1() of schedule 2 to the 1971 Act gives an immigration officer a wide variety of powers to direct the removal of a person from the United Kingdom in cases where "a person arriving in the United Kingdom is refused leave to enter". Paragraph 8(2), however, provides: "No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom." Paragraph 9 provides: "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 auhtorised by paragraph 8(1)." The phrase "illegal entrant" is itself defined by section 33(1) of the 1971 Act, which defines him as: "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". Paragraph 16(2) of Schedule 2 provides: "A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given." Now, in the case of Khawaja, the applicant had arrived in this country on 17 March 1980. On 4 May 1981 an immigration officer had concluded that there were reasonable grounds to conclude that he was an "illegal entrant" as having obtained leave to enter by fraud and authorised his detention under paragraph 16(2) of schedule 2 to the 1971 Act. However, as the decision in that case makes clear, the power of detention conferred by the combined effect of that paragraph and the earlier paragraph 9 is exerciseable only in respect of a person who is in fact an illegal entrant. Lord Bridge put the matter thus (at pages 122-123): "A person who has entered the United Kingdom with leave and who is detained under Schedule 2 paragraph 16(2) pending removal as an illegal entrant on the ground that he obtained leave to enter by fraud is entitled to challenge the action taken and proposed to be taken against him both by application for habeas corpus and by application for judicial review. On the view I take, paragraph 9 of Schedule 2 must be construed as meaning no more and no less than it says. There is no room for any implication qualifying the words 'illegal entrant'. From this it would follow that while, prima facie, the order for detention under paragraph 16(2) would be a sufficient return to the writ of habeas corpus, proof by the applicant that he had been granted leave to enter would shift the onus back to the immigration officer to prove that the leave had been obtained in contravention of section 26(1)(c) of the Act, in other words by fraud." Similarly (at page 97E) Lord Fraser said this: "On this question I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. This is a 'precedent fact' which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief." Much more recently, Lord Bridge in the case of R v Home Secretary, ex parte Bugdaycay [1987] 2 WLR 606 at page 611 similarly explained the Khawaja decision as being a decision that: "when directions given pursuant to paragraph 9 of Schedule 2 to the Act for the removal of an illegal entrant are challenged on an application for judicial review, it is for the immigration officer or the Secretary of State, as the case may be, to establish the fact of illegal entry." Then a little later he said (at page 611G): "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 to direct removal under paragraph 9 of Schedule 2 is only available in the case of a person who is in fact an 'illegal entrant'." On behalf of the applicant in the present case, Mr Quddus, in opening his appeal, submitted to us that the order for removal was made by the immigration officer under paragraph 9 of schedule 2 to the 1971 Act, and on these grounds submitted that the case fell precisely within Khawaja principles. However, having heard the submissions of Mr Pleming on behalf of the respondent, he accepted that this is not a paragraph 9 case but one falling in fact within paragraph 8(1). This in my judgment makes a crucially important difference. Paragraph 8(1) (which I have already read) confers on an immigration officer a general power to make an order for the removal of a person in cases where "a person arriving in the United Kingdom is refused leave to enter". Unlike the power conferred by paragraph 9, the terms of this power do not render it a precedent fact which has to be established that the applicant actually is an illegal entrant. It is therefore the refusal of leave to enter itself which the applicant is obliged to challenge in the present case. If that was valid, so was the order for removal. I should add that the evidence shows clearly that the immigration officer regarded himelf as acting and purported to act under paragraph 8, rather than paragraph 9, as on the face of it he was fully entitled to do. Section 3(4) of the 1971 Act provides: "A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply." Accordingly, when the applicant in the present case returned to the United Kingdom on 8 May 1985, he was obliged to go through the filter of rules 56 and 76. Whatever leave to remain he might previously have enjoyed had lapsed when he left this country in 1984. When he returned in 1985, though he had a right to apply for leave to enter under rule 56 coupled with rule 76, he had no subsisting right to be here until such leave was given. Rule 76 provides that the fact that a passenger satisfies the formal requirements of the foregoing provisions of the rules is not conclusive in his favour and specifically provides that leave to enter may be refused if a previous leave to enter or remain has been obtained by deception. In ex parte Swati [1986] 1 WLR 477, this court held that, where an immigration officer refuses leave to enter this country, the process of judicial review is not appropriate for a purely factual challenge to his decision, though such decision is open to challenge on ordinary Wednesbury grounds, that is to say on the grounds of illegality, irrationality or procedural impropriety: see at page 482 per Sir John Donaldson, MR. In relation to a purely factual challenge Stephen Brown LJ pointed out in that case (at page 487): "The statutory appeal procedure to an adjudicator and, with leave, to the Immigration Appeal Tribunal is clearly the appropriate method of challenging the immigration officer's decision." Mr Quddus suggested that there was a conflict between rules 56 and 76, but I, for my part, can see no conflict at all. The later rule simply qualifies the earlier one. He submitted that the two rules, when read together, coupled with the decision of the immigration officer, place upon the Secretary of State in resisting the application for entry the onus of showing that the applicant originally obtained entry to the United Kingdom by deception. I cannot accept this submission. I entirely accept Mr Quddus's submission that, if the case of the Secretary of State is correct, the applicant would be an "illegal entrant" within the definition contained in section 33(1) of the 1971 Act (see, for example, ex parte Patel [1986] Imm AR 515). (In Mohammed Fazor Ali v Secretary of State [1988] Imm AR 274 Slade LJ, at p 280 took the opportunity to clarify this part of his judgment.) Nevertheless, it seems to me that this is irrelevant in the present context, because entirely different considerations apply where the order for removal has been made under paragraph 9 of schedule 2 to the 1971 Act as it was in Khajawa, and where it has been made under paragraph 8 of that schedule as it was in the present case. In his reply Mr Quddus placed heavy reliance on a passage in Lord Bridge's speech in Khawaja (at page 115) where Lord Bridge said this: "The only ground for summary removal by directions given pursuant to paragraph 8 or 10 of Schedule 2 of a resident non-patrial is that he is an illegal entrant, which, in this context, must mean that he comes within the relevant words of the definition as 'a person who has entered the United Kingdom in breach of a deportation order or of the immigration laws'." Mr Quddus sought to derive support from this passage for the proposition that any order for removal made under paragraph 8 falls within Khawaja principles as much as an order for removal made under paragraph 9. But this sentence in Lord Bridge's speech was, by its very terms, directed to the case of an order for removal of a resident non-patrial. In the present case at the time of the order for removal Mr Sattar was not a resident in this country. This, in my judgment, made it entirely right for the learned judge to treat the case before him as not falling within the Khawaja case but in treating it as a port refusal case. Accordingly, I think he was equally right to decline to permit cross-examination or to resolve the issues of fact arising with regard to the disputed alleged admissions by the applicant and his brother. In the light of Swati, I think he was plainly right to consider the relevant question before him as being simply whether there was any evidence of any illegality, irrationality or impropriety of procedure on the part of the immigration officer in reaching the decision refusing leave of entry to the applicant. I am fortified in this approach by three apparently unreported decisions of judges sitting at first instance, to which we have been referred by Mr Pleming on behalf of the Secretary of State for the Home Department ex parte John Osei Kwabena given on 22 May 1985; the second was that of Farquharson J himself in R v Secretary of State for the Home Department ex parte Mohammed Yacoub given on 4 November 1985; and the third was that of McCullough J in R v Secretary of State for the Home Department ex parte Shorazan Bibi and Noor Miah given on 26 January 1987. (See now [1987] Imm AR 213) On the question whether the decision of the immigration officer could be attacked on Wednesbury principles Farquharson J had these observations to make (at page 5 of his judgment): "Therefore my task, if that case be the governing authority (Swati), as I consider it is, is to see in the circumstances of this case whether there were grounds upon which the immigration officer could reasonably have come to the conclusion that he did. I emphasise that it is not for me to decide what is the correct account of that interview. I have already referred in reciting the facts to the admissions made not only by the applicant, but also by his brother/cousin, (according to which is the correct interpretation of the facts). Plainly these constituted ample grounds upon which the immigration officer could decide to refuse entry." He went on to say that this approach was fortified by the decision of Webster J in the Kwabena case. This part of the learned judge's judgment relating to the application of the Wednesbury principles, as I have indicated, has not been attacked in the notice of appeal and, in my judgment, was plainly right. For all these reasons I think that the learned judge reached the correct conclusion for the correct reasons. For my part, I would dismiss this appeal.Judgment Two:
BALCOMBE LJ: I agree.Judgment Three:
STOCKER LJ: I also agree.DISPOSITION:
Appeal dismissedSOLICITORS:
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