Al-Tuwaidji v. Chief Immigration Officer, London (Heathrow) Airpost

AL-TUWAIDJI v CHIEF IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/2521/73(166)

Immigration Appeal Tribunal

[1974] Imm AR 34

Hearing Date: 13 July 1973

13 July 1973

Index Terms:

Medical grounds for refusing admission -- Medical Inspector's report at port of entry -- Opinion of Medical Inspector -- Diagnosis of schizophrenia not corroborated by other medical examination -- Whether Medical Inspector's certificate that admission was "undesirable for medical reasons" binding on immigration officer in the absence of strong compassionate reasons -- H.C. 81, rr 60, 61.

Held:

The appellant citizen of Saudi Arabia when interviewed by an immigration officer on arrival in the United Kingdom said, inter alia, that while here on a visit he would like to seek medical advice on a condition of 'two minds' for which he had been receiving treatment for the past 3 years. He was referred under rule 60 of H.C. 81 n1 to the Port Medical Inspector, who examined the appellant and completed an official report form by inserting the word 'schizophrenia' in Part B(1) of the form, as follows: n1 Rule 60 of H.C. 81 is set out on p 35, post. "B. I have medically examined the above-named entrant and I consider that he is suffering from schizophrenia. (1) I hereby certify that it is undesirable for medical reasons to admit the entrant." The Medical Inspector deleted the alternative sentences provided by Parts A, B(2) and C on the form. No representations were made to the immigration officer that "strong compassionate reasons" existed for granting admission, and entry was refused in accordance with rule 61 of H.C. 81 n2. n2 Rule 61 of H.C. 81 is set out on p 36, post. On appeal to an adjudicator a report was submitted from a psychiatrist who examined the appellant subsequent to the refusal of entry. The psychiatrist did not support the diagnostic opinion of the Medical Inspector. The adjudicator dismissed the appeal, holding that in the absence of strong compassionate reasons the first sentence of rule 61 required the immigration officer to adhere to the Medical Inspector's advice (whether or not his diagnosis was right) where he certified it to be undesirable for medical reasons to admit the passenger. On further appeal to the Tribunal, Held: dismissing the appeal, on the advice which was given by the Medical Inspector, and in the absence of strong compassionate reasons leading the immigration officer to consider admission warranted, the word "should" in the first sentence of rule 61 of H.C. 81 bound the immigration officer to refuse leave to enter. Per curiam: numerous examples of imperative enactments referred to in MAXWELL on the Interpretation of Statutes (12th Edn. 1969) show that when the word 'should' is used in an enactment, such enactment is imperative.

Counsel:

N. Mookerjee of the United Kingdom Immigrants Advisory Service, for the appellant. J. De Llanos for the respondent. PANEL: P. N. Dalton Esq (Vice-President), B. J. S. Edmond Esq, J. A Noble Esq.

Judgment One:

THE TRIBUNAL: The appellant Abdullah Sulieman Al-Tuwaidjy, a citizen of Saudi Arabia, arrived at London Airport on 1 July 1973. His passport was endorsed with a valid visa as a visitor and he told the immigration offcer who interviewed him that he had come to this country for a three months' visit and that he would stay with his brother, a doctor in Leeds. The appellant said that he might seek medical treatment for an injured eye. He was then asked if he intended to seek any other medical treatment in this country and he said that he suffered from 'two minds' and that he would like to see a doctor about this. When he was asked about what he meant he told the immigration officer that he sometimes imagined that he was Christ and that on certain occasions in the past this had made him violent and he had attacked people. The immigration officer asked the appellant when he had last experienced these feelings and he replied that he last occasion had been two years before and had resulted in his attacking someone with a knife. The appellant was asked if he was undergoing treatment for his condition and he said that he had been treated with drugs for the last three years. The appellant showed the immigration officer a number of prescriptions he had in his baggage. The Immigration Officer considered that the appellant should be referred to the Port Medical Inspector in pursuance of r 60 of H.C. 81. This reads as follows:

"60. A passenger who intends to remain in the United Kingdom for more than 6 months should normally be referred to the Medical Inspector for examination. If he produces a medical certificate, he should be advised to hand it to the Medical Inspector. Any passenger who mentions health or medical treatment as a reason for his visit, or who appears not to be in good health or appears to be mentally or physically abnormal, should also be referred to the Medical Inspector; and the Immigration Officer has discretion, which should be exercised sparingly, to refer for examination in any other case."

After examining the appellant the Medical Inspector issued the following certificate (Form Port 30): -- "I have medically examined the above-named entrant (Abdullah Al-Tuwaidjy), and I consider that he is suffering from schizophrenia. I hereby certify that it is undesirable for medical reasons to admit the entrant." The immigration officer contacted the appellant's brother, Dr Abdul Aziz Sulieman Al-Tuwaidjy, who was at the airport. Dr Al-Tuwaidjy said that he did not know the nature of his brother's illness exactly but said that he had spoken to a neurologist at Killingbeck Hospital, Leeds, where he practised, and hoped that treatment for his brother's condition could be arranged there. The doctor said he would provide accommodation and maintenance for his brother and his mother, who had accompanied the appellant to the United Kingdom, during their stay in this country. When the immigration officer explained that the Medical Inspector had certified that the appellant was suffering from schizophrenia, Dr Al-Tuwaidjy said that although he knew his brother was suffering from nervous disorder he was not aware that it was schizophrenia. The immigration officer considered the matter further under r 61 of H.C. 81. This provides: --

"61. Where the Medical Inspector advises that for medical reasons it is undesirable to admit the passenger, the Immigration Officer should refuse leave to enter unless he considers admission warranted by strong compassionate reasons. He may also refuse leave to enter where the passenger declines to submit to a medical examination. And where the Medical Inspector advises that a passenger is suffering from a specified disease or condition which may interfere with his ability to support himself or his dependants, the Immigration Officer should take account of this, in conjunction with other factors, in deciding whether to admit the passenger."

No representations had been made to the immigration officer that strong compassionate reasons existed and after referring the case to a Chief Immigration Officer, the immigration officer, with the authority of his superior officer, on 1 July 1973 refused the appellant leave to enter this country under s 3(1)(a) of the Immigration Act, 1971 and in accordance with r 61 of H.C. 81. When the appellant appealed to an adjudicator, Sir John Pestell, Miss P. Clark of the United Kingdom Immigrants Advisory Service appeared on his behalf and Mr J. De Llanos appeared on behalf of the respondent. Miss Clark put in evidence a letter dated 3 July from Dr M. L. S. Beesley, Senior Registrar to Dr U. B. H. Baruch, the Consultant Psychiatrist at St Bernard's Hospital in Southall, to which the appellant had been admitted two days after his arrival in this country. In this letter Dr Beesley said that there did not appear to be any history of violence or abnormal behaviour. Pausing there, it does not seem that the appellant was as frank with Dr Beesley as he was with the immigration officer who interviewed him. Dr Beesley's letter concluded as follows: --

"On examination I found the patient pleasant and co-operative, and there is no evidence of any gross psychiatric symptoms. There are no obvious signs of delusions or hallucinations, but he seems somewhat depressed and I think that this is the more likely diagnosis than that of schizophrenia. I would not have thought that he was likely to cause any trouble if allowed to stay here for a month or so."

Dr Aziz Tuwaidjy gave evidence and said that as a doctor he would say that the appellant showed no signs of schizophrenia but he added candidly that it was not his field of medicine as he specialised in chests. Miss Clark submitted on behalf of the appellant that the Medical Inspector's certificate, in the light of Dr Beesley's report on the appellant, was in doubt and also that the Medical Inspector, not being a psychiatrist but an ordinary general practitioner, was not fully qualified to judge the appellant's illness. In his determination on 3 July Sir John Pestell quoted the first sentence of r 61 H.C. 81 and then said:

"Whether the doctor is right in his diagnosis and whether the passenger is suffering from schizophrenia or not, is not the important part. The important part is that the Medical Inspector has certified 'that it is undesirable for medical reasons to admit the entrant', and this must be adhered to. The immigration officer need not refuse if there are strong compassionate reasons but no strong compassionate reasons have been put forward that I can find, or at least they do not form part of this appeal."

The adjudicator said he had no alternative but to dismiss the appeal and the appeal was accordingly dismissed. He granted leave to appeal to the Tribunal. At the hearing of the appeal Mr N. Mookerjee argued the following grounds of appeal: 1. The adjudicator has made an error in law in interpreting para 61 of H.C. 81. 2. The adjudicator's determination is contrary to the principles of natural justice. Mr Mookerjee submitted that where a medical inspector advises that a person is suffering from a specified disease an immigration officer has to take account of whether that disease interferes with that person's ability to support himself and his dependants in conjunction with other factors. The immigration officer therefore has a discretion and it follows that the adjudicator had a discretion. The medical evidence has been challenged, the appellant having been examined by two psychiatrists n3 who do not consider him schizophrenic, and in all the circumstances of the case Mr Mookerjee submitted that the discretion should have been exercised differently. Mr Mookerjee appeared to support the second ground of appeal on the proposition that the medical inspector, whom he described as a civil servant, had not put in a report nor given evidence in this case. n3 Dr Beesley reported in a second letter that Dr Baruch, the consultant psychiatrist at the hospital named (see above), concurred in his opinion. We are satisfied that, as Mr J. De Llanos submitted, when a passenger is referred to a Medical Inspector, there are certain alternatives open to the Medical Inspector under r 61 n4, as the report form which has to be completed by the Inspector shows. It contains parts A, B and C which are alternatives, and paragraphs (1) and (2) of Part B are also alternative. In this particular case the Medical Inspector has deleted all parts of the form except part B(1) which reads, as stated earlier: n4 Rule 61 of H.C. 81 is set out on p 36, ante. "B. I have medically examined the above named entrant, and I consider that he is suffering from schizophrenia. (1) I hereby certify that it is undesirable for medical reasons to admit the entrant." The Medical Inspector has not advised under part B(2) of the form that the appellant is suffering from a specified disease that "may interfere with his ability to support himself or his dependants in the United Kingdom". In considering the first sentence of r 61 or H.C. 81 n4 we bear in mind that numerous examples of imperative enactments referred to in MAXWELL on the Interpretation of Statutes show that when the word "should" is used in an enactment, such enactment is imperative. n5. Therefore when the Medical Inspector advises that for medical reasons it is undesirable to admit a passenger, and there are no strong compassionate reasons leading the immigration officer to consider admission warranted, then in our view, the immigration officer is bound under the rule to refuse leave to enter. n5 MAXWELL (12th Edn. 1969), see pp. 234-235, 314-318, 320-322. The action of the immigration officer and the determination of the adjudicator are clearly in accordance with the law and the immigration rules applicable and this appeal is dismissed.

DISPOSITION:

Appeal dismissed.

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