Mustun v. Secretary of State for the Home Department

MUSTUN v SECRETARY OF STATE FOR THE HOME DEPARTMENT TH/1930/71

Immigration Appeal Tribunal

[1972] Imm AR 97

Hearing Date: 3 July 1971

3 July 1971

Index Terms:

Port refusal -- Immigration officer's powers of examination -- Entry certificate obtained by concealment of facts known to be material -- Extent of entitlement to question Commonwealth citizen holding visitor's entry certificate -- Cmnd 4298, paras 10, 11 and 13.

Visitor -- Genuine visitor -- Entry certificate obtained by concealment of facts known to be material -- Port immigration officer's powers of examination -- Cmnd 4298, paras 10, 11 and 13.

Held:

The appellant citizen of Mauritius on 9 November 1970 applied for an entry certificate in Mauritius unsuccessfully, and on 29 March 1971 he was refused admission to the United Kingdom at Ramsgate; he appealed to an adjudicator against the refusal to grant an entry certificate and on 15 April 1971 his appeal was dismissed. On 28th June 1971 he arrived at Southampton with an entry certificate marked 'visitor' which had been issued to him the same day at Le Havre. The appellant's replies to questions put to him by a Southampton immigration officer, and the officer's subsequent enquiries at the British Consulate in Le Havre, led the officer to refuse him admission under para 10(a) and para 13 of Cmnd 4298, n1 under para 10(a) because the officer formed the opinion that the current entry certificate had been obtained by fraudulent misrepresentations and by concealment of facts which the appellant knew to be material, and under para 13 because the officer was not satisfied as to the appellant's true intentions in seeking entry as a visitor. (The facts are set out in the Determination, post.) n1 Paragraphs 10(a) and 13 of Cmnd 4298 are set out in footnote 3, post. The appellant's appeal to an adjudicator was dismissed, and he appealed to the Tribunal on the ground, inter alia, that where, as here, a Commonwealth citizen arrived holding an entry certificate a port immigration officer had no jurisdiction to ascertain his intention or to satisfy himself in the terms of para 13 of Cmnd 4298; all the officer might do was to seek to establish that the entry certificate was obtained by fraudulent representations to the issuing officer or by concealment of facts which the applicant for the certificate knew to be material. The Tribunal found that when the appellant applied for an entry certificate at the British Consulate in Le Havre there was (under para 10(a) of Cmnd 4298) a concealment of facts by him which he knew to be material, and affirming the adjudicator's determination, Held: dismissing the appeal, that the immigration officer at Southampton was fully entitled to question the appellant under para 11 of Cmnd 4298, n2 and on such examination revealing a concealment of facts the immigration officer was further entitled to consider the reasons for the appellant wishing to come to this country and for this purpose to apply the provisions of para 13 in order to ascertain the genuineness of the proposed visit. n2 Paragraph 11 of Cmnd 4298 is set out in footnote 4, post.

Counsel:

Ahmed Ali of the United Kingdom Immigrants Advisory Service, for the appellant. M. J. Wright for the respondent. PANEL: Sir Derek Hilton (President), P. N. Dalton Esq. (Vice-President), Dr. L. P. de Souza

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Air Vice-Marshal R. C. Ayling CB CBE) dismissing the appellant's appeal against the refusal to admit him to the United Kingdom although he was in possession of an entry certificate. The appellant who was born on 22 August 1942 is a citizen of Mauritius. He arrived at Southampton from France on 28 June 1971 on the car ferry accompanied by his brother Mr. Abdool Rashmid Mustun. The appellant's passport had been endorsed at Le Havre on the same day with an entry certificate marked 'visitor'. The passport also contained endorsements to the effect that the appellant had applied for an entry certificate in Mauritius on 9 November 1970 and that he had been refused admission to this country at Ramsgate on 29 March 1971. The appellant told the immigration officer who questioned him that he only wished to stay in this country with his brother (who had lived in the United Kingdom for some years) for three or four days to enable him to make application through the Mauritian High Commission to the French Embassy in London for a work permit to enable him to continue in his employment at a French laundry as he had been informed by his employer there that in order to achieve this he must apply for the permit whilst he was out of France. The appellant's brother then produced to the immigration officer the papers relating to the previous application in Mauritius for an entry certificate for the purpose of a four week visit to the United Kingdom. This application had been refused and the appellant's appeal against the decision was dismissed by an adjudicator on 15 April 1971. The brother stated that the appellant had originally hoped that he might be allowed to remain permanently in the United Kingdom but that now he had the opportunity of staying in France they did not wish to pursue their hopes of his being able to settle in this country. On the following day the immigration officer was informed by the Acting British Consul in Le Havre that the only reason given by the appellant for an entry certificate was to be able to visit his brother for three days and no mention was made of the proposal to apply for a work permit. The appellant and his brother had explained the earlier refusal of an entry certificate to be due probably to lack of funds. No mention of the appeal was made to the British Consul nor were any papers relating to that application and appeal produced to him. On further questioning the appellant and his brother mentioned that the sole reason given to the British Consul when the entry certificate was applied for was to make an application for a work permit. As a result of this questioning the immigration officer was not satisfied as to the appellant's true intentions in seeking entry as a visitor and in his opinion the entry certificate had been obtained by fraudulent representations and by a concealment of facts which the appellant knew to be material. For these reasons on 29 June last admission was refused in accordance with para 10(a) and para 13 of Cmnd 4298. n3 n3 Paragraph 10(a) of Cmnd 4298 reads: "10. A commonwealth citizen who holds an entry certificate which was issued to him and is still valid should be presumed to be qualified for admission; and he should not be refused admission unless it is established that (a) the entry certificate was obtained by fraudulent representations to the issuing officer, or by the concealment from him of facts which the applicant knew to be material". Paragraph 13 of Cmnd 4298 reads: "13. A Commonwealth citizen seeking entry as a visitor is to be admitted if he satisfies the Immigration Officer that he is genuinely seeking entry for the period of his visit as stated by him and can, without working, support himself and any dependants for this period and meet the cost of his return journey. A visitor who depends for support on a relative or friend in this country may be admitted if the Immigration Officer is satisfied that no more than a visit is intended and that the support available is adequate. In either case admission should be refused if the Immigration Officer is not so satisfied." The appellant appealed against this decision and his appeal was heard by the adjudicator on 1 July last when the appellant and his brother both gave evidence. The adjudicator dismissed the appeal as in his view the immigration officer was justified in mistrusting the intentions of the appellant, that the refusal was correct in law and that there was no case for the exercise of discretion in the appellant's favour. The appellant's ground of appeal to the Tribunal was that the adjudicator did not give proper consideration to the evidence produced by the appellant at the hearing. At the commencement of the hearing of the appeal before us Mr. Ali was granted permission to add two further grounds of appeal: -- (1) that the adjudicator had erred in law to base his finding on the ground he had given in the penultimate paragraph of his determination, for it is not the jurisdiction of an immigration officer to ascertain the intentions of the appellant or to satisfy himself in the terms of para 13 of Cmnd 4298. All that an immigration officer can do in the case of a Commonwealth citizen who holds an entry certificate is to establish that the entry certificate was obtained by fraudulent representations to the issuing officer or by the concealment from him of facts which the appellant knew to be material; (2) that the adjudicator also erred in coming to the conclusion that a work permit could be applied for in France when there was no evidence to show that such is the case except what the immigration officer said in his statement. On behalf of the appellant Mr. Ali submitted: -- (a) the appellant had a valid entry certificate but the application had been refused under para 13 rather than para 10 of Cmnd 4298; (b) the appellant had only wished to come to the United Kingdom to apply for a French work permit and to visit his brother and sister. This was true and there had been no misrepresentation; (c) there was no obligation under the rules to reveal the whole of one's past history. Anyone can make a second application for an entry certificate and each case must be judged on its own facts. The entry certificate officer knew from an examination of the passport that a previous application had been refused; (d) a written note was handed in of a conversation with the Secretary to the Labour Attache at the French Embassy in London which confirmed that an applicant for a French work permit had to be outside France when the application was made; (e) there was no proof that the entry certificate was obtained by fraudulent misrepresentation or the concealment of material facts. The onus of proof was on the respondent. Mr. Wright on behalf of the respondent submitted in reply: -- (a) an immigration officer had jurisdiction and every right to be satisfied that a proposed visit was genuine. The decision in this case was right in law; (b) there was ample evidence of the unreliability of the appellant both in the application at Port Louis and in the later application at Le Havre; (c) the appellant's brother was in possession at Le Havre of all the papers relating to the appellant's previous application and of the dismissal of his appeal but did not produce these to the entry certificate officer. In neither application was the appellant entirely honest. We find that in making his application for an entry certificate at Le Havre the appellant did not fully reveal all the relevant facts to the Acting British Consul and that there was a concealment by him of facts which he knew to be material under the provisions of para 10 of Cmnd 4298. The immigration officer at Southampton was fully entitled to question the appellant under para 11 and as a result of such examination, n4 which revealed a concealment of facts, the immigration officer was further entitled to consider the reasons for the appellant wishing to come to this country and for this purpose to apply the provisions of para 13 in order to ascertain the genuineness of the proposed visit. In the event the immigration officer was not satisfied that no more than a visit was intended. n4 Paragraph 11 of Cmnd 4298 reads: "11. Since an Immigration Officer would normally have no other means of discovering whether, for example, an entry certificate had been obtained by false statements or whether there had been a material change of circumstances, he is justified in examining the holder of an entry certificate so far as is necessary to determine whether any of the exceptions mentioned in paragraph 10 applies, and in acting on reasonable inferences from the results of that examination and any other information available to him including anything that may be said by a relative or friend of the Commonwealth citizen in this country. The holder of an entry certificate should not, however, be examined further than is necessary for this purpose and for the purpose of deciding whether any and, if so, what conditions of admission should be imposed." We agree with the decision of the immigration officer and with the determination of the adjudicator and for these reasons we dismissed the appeal.

DISPOSITION:

Appeal dismissed.