Padmore v. Secretary of State for the Home Department
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
5 August 1970
PADMORE v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/12/70
Immigration Appeal Tribunal
[1972] Imm AR 1
Hearing Date: 5 August 1970
5 August 1970
Index Terms:
Visitor -- Genuine visitor -- Entry certificate obtained by misrepresentation -- Cmnd 4298, para 13.
Practice and procedure -- Immigration officer's presence at appeal hearings for questioning -- Desirability of attendance when immigration officer the respondent -- Immigration Appeal Procedure Rules 1970, r 7.
Natural justice -- Practice of immigration service at ports when refusing admission -- Appellant not in doubt as to reasons for refusal of admission.
Held:
The appellant aged 16 arrived from Guyana with an entry certificate marked 'visitor' and a ticket for his return 4 weeks later. He was refused admission. The Tribunal held (i) confirming the adjudicator, that the appellant had been properly refused on the evidence oral and documentary which was severally before the immigration officers concerned and before the adjudicator, for this showed that he was not a genuine visitor but intended to settle here and obtain employment; (ii) that when an immigration officer was the respondent it was desirable whenever practicable that he should be present at the appeal hearing before an adjudicator so that he might be questioned, and that any statement by an immigration officer should be signed by him and presented as his evidence (see page 4, post); (iii) that, applying re K(H) (an infant) ([1967] 1 All ER 226), the procedure adopted by the immigration officers was in no way contrary to natural justice (see page 4, post).Introduction:
The material facts appear in the Determination of the Tribunal.Counsel:
P. L. Tucker of the United Kingdom Immigrants Advisory Service, for the appellant. W. J. Bohan for the respondent. PANEL: Sir Derek Hilton (President), P. N. Dalton Esq. (Vice-President), Mrs. B. WarburtonJudgment One:
THE TRIBUNAL: The appellant Mr. Deriek Padmore (born 6 March 1954), a passenger with a valid entry certificate landed at Luton Airport on 27 July 1970 seeking entry as a visitor. He had an airline ticket which was valid for return to Guyana on 21 August 1970. The appellant was interviewed on his arrival by an immigration officer, Mr. D. G. Thomson, as also was Mrs. J. Small, the appellant's sister, who had come to meet him at the airport: with the appellant's permission Mr. Thomson also examined several letters Mrs. Small had written to her brother. After the interviews and reading the letters Mr. Thomson considered that the appellant's primary intention was to work and settled in the United Kingdom and he was not satisfied because of the contradictions and inconsistencies in the statements made, that the appellant was genuinely seeking entry for 6 months and that no more than a visit was intended. n1 Mr. Thomson sent a telex message to the entry certificate officer in Guyana to ascertain whether or not the entry certificate marked "visitor" which had been issued to Mr. Padmore had been obtained by fraudulent representation or concealment of facts which the appellant knew to be material. When the reply was received Mr. P. W. Westerby, who was dealing with the matter, Mr. Thomson having gone off duty, considered that it showed that the appellant had represented himself solely as a short term visitor and had obtained the entry certificate by the concealment of facts from the issuing officer which the appellant knew to be material. In view of this and what had gone before, Mr. Westerby refused Mr. Padmore admission, under section 2 of the Commonwealth Immigrants Act 1962 as amended by the Commonwealth Immigrants Act 1968. n1 Under Cmnd 4298, para 13, (Instructions to Immigration Officers). Mr. Padmore then appealed to an adjudicator, Mr. J. K. Brownlees, who heard the evidence of the appellant and his sisters, Mrs. J. Small and Miss Melba Padmore, and also the submissions of Mr. Tucker on behalf of the appellant. At the conclusion of the hearing Mr. Brownlees dismissed the appeal, saying in the course of his reasons for so doing --"After hearing, and seeing, the evidence produced on appeal, I also am not satisfied that only a visit was intended. Indeed, I am of the opinion that the appellant not merely hoped, as he said, to settle in the United Kingdom, but definitely intended to do so if it was at all possible. To come with such intent cannot be described for purposes of immigration as a visit."
Mr. Padmore then appealed to the Immigration Appeal Tribunal. Five grounds of appeal were attached to the notice of appeal but Mr. Tucker, on behalf of the appellant, only argued the first, fourth and last grounds at the hearing of the appeal though he asked that the second and third grounds of appeal should remain on the record, and so we will now only deal with the grounds that were argued. The first ground of appeal was set out as follows: -- "The adjudicator's finding that Padmore was not a genuine visitor is not based on any evidence before him apart from a report by Mr. Westerby. In this report Mr. Westerby states 'Both Master Padmore and Mrs. Small had said that he intended to settle here with her'. This statement was categorically denied by both Mr. Padmore and Mrs. Small in this evidence before the adjudicator. And no evidence was produced to corroborate it. Yet it was on the basis of this report that the Immigration Officer came to the conclusion that Padmore was not a genuine visitor. And he was upheld on that basis alone." With respect, we cannot agree that the only basis for the adjudicator's finding that Mr. Padmore was not a genuine visitor was the report by Mr. Westerby. Attached to this report was a letter from Mrs. J. Small to her brother, the appellant, dated 25 March 1970. In this letter Mrs. Small said: --"... I was trying to get someone to sponsor for you so far I got no one things are getting so hard now that they are trying not to let any immigrants into the country... what I advise you to do if you can't get your papers fixed is state that you are coming for a holiday for a couple of years then after you get here I might be able to get some one to help you to stay for good."
The telex reply from the entry certificate officer in Georgetown showed that on 12 May 1970 the appellant had applied for an entry certificate on a charter flight visit of 4 weeks to his sister, Mrs. J. Small, and had produced letters of invitation from his host and evidence of a return ticket. The entry certificate officer stated that the applicant Mr. Padmore and both parents had previously travelled to the United Kingdom to visit Mrs. Small at Christmas 1968 and in view of these facts he had no reason to suppose that the application was other than for a genuine visit. On 3 May 1970 the appellant's sister, Melba Padmore, had written a letter to her brother saying "I thought you were not writing me because I objected to you coming up here. I am afraid I still do not think it is a good idea even after reading your letter. I feel that once you have come up here that will be the end of your studies and you will end up just working in a factory or something like that. Anyway Joan has asked me to write a letter in her name inviting you to come up here on holiday which I am enclosing with this letter. I have written it to Dad as you are under age and I am sure he will have to make the necessary arrangements for you". On 14th July the appellant wrote a letter to his sister, Mrs. Joan Small, and in it he said --"Dad's advice is that I should enlist with the Navy as soon as possible and if there are signs of being accepted then I should go ahead with it... If there are signs of not being accepted then I'll return to Guyana with the excursion flight on 21 August which means that I will have to start moving just a few days after arrival in the UK. To tell you the honest truth this is exactly how I had it planned."
In his evidence before the adjudicator the appellant said that he was thinking of a holiday in this country for a couple of years, but we find it difficult to believe that a youth like the appellant could afford, educationally or financially, a holiday for 2 years. Mr. Padmore also told the adjudicator that he wanted to stay here permanently and Mrs. Small said in her evidence that she suggested a 2 year period to her brother in order that he could look around for work. We therefore cannot accept the submission that the only evidence to support the finding that Mr. Padmore was not a genuine visitor was Mr. Westerby's report. On the contrary we find that there was ample evidence apart from the report to justify such finding. Referring to his fourth ground of appeal Mr. Tucker said that it was really a protest against what is becoming a practice at hearings before adjudicators; that is to say, the practice of not calling any evidence but relying on written statements. We cannot say whether this is the practice or not but it is to be noted that in the appeal to the Tribunal immediately following this appeal the immigration officer concerned gave evidence and was cross-examined. The Immigration Appeals (Procedure) Rules 1970 provide in rule 7 that the respondent to the appeal shall provide for the adjudicator or Tribunal and the appellant a written statement of the facts relating to the decision or action in question and the reasons therefor. If an immigration officer who is the respondent finds it impracticable to prepare such a statement before the hearing of the appeal an oral statement has to be given at such hearing. We are of opinion therefore that if a written statement has been given, it is not obligatory under the rules for a respondent immigration officer to appear and to give evidence though he may do so to amplify his written statement if he so wishes. We do consider, however, that it is desirable, whenever practicable, that an immigration officer who is the respondent should be present at the hearing of an appeal before an adjudicator so he may be questioned on behalf of the appellant and by the adjudicator. We further consider it desirable that any statement made by an immigration officer should be signed by him and presented as his evidence and not through any other officer. We would also urge that whenever possible the appeal to an adjudicator should be at the port of entry. Mr. Tucker's final ground of appeal was that as Mr. Westerby, the officer who refused admission, had not heard Mr. Padmore at any stage it was contrary to natural justice for him to decide the matter and that it was also contrary to the principle of fair play as stated by LORD PARKER, C.J. in the case of re K (H) (an infant). n2 We do not consider that there are any merits in this ground of appeal. We have no doubt after reading the explanatory statement furnished by Mr. Westerby, that Mr. Thomson gave full details of his interviews with the appellant and his sister, Mrs. J. Small, to Mr. Westerby; Mr. Westerby also read the letters to which we have referred earlier herein. We do not agree that it was contrary to natural justice for Mr. Westerby, having ascertained the facts and having obtained the authority of a chief immigration officer as required in n3 Cmnd 4298 para. 58, to refuse the appellant admission. n2 [1967] 1 All ER 226; [1967] 2 QB 617; [1967] 2 WLR 962. n3 Commonwealth Immigrants Acts 1962 and 1968: Instructions to Immigration Officers. Mr. Tucker referred to the following extract from LORD PARKER'S judgment in re K(H) (an infant). n4 n4 [1967] 1 All ER at page 231."even if an immigration officer is not acting in judicial or quasi-judicial capacity, he must at nay rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly."
When the appellant arrived at Luton Airport he was interviewed by Mr. Thomson, who asked him how long he intended to stay and the purpose of his visit. As the interview continued, at first before Mr. Thomson alone and then before Mr. Thomson and the Chief Immigration Officer, Mr. de Llanos, it is clear that the questioning of the appellant was directed to ascertaining whether he had come to this country as a bona fide visitor or whether he was entering to settle here and obtain employment. We are satisfied that the immigration officers could have left no doubt in the appellant's mind that their impression was that more than a visit was intended and it was then for Mr. Padmore to disabuse them of that impression. This is did not do.DISPOSITION:
Appeal dismissedDisclaimer: Crown Copyright
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