Immigration Officer, Birmingham v. Mohammad Sadiq

IMMIGRATION OFFICER, BIRMINGHAM v MOHAMMAD SADIQ, TH/8340/76(1188)

Immigration Appeal Tribunal

[1978] Imm AR 115

Hearing Date: 19 April 1978

19 April 1978

Index Terms:

Port refusal -- Immigration Officer's powers of examination -- Passenger Pakistan citizen seeking entry as short-term visitor -- Legally employed in France and holding adequate funds for proposed short visit -- Admission that in past two years twice refused entry as visitor, and claim made that two recent passports lost -- Whether officer acted fairly and in good faith in seeking information on passenger's family circumstances -- Whether officer reasonably not satisfied that passenger a genuine visitor when passenger (and his sponsoring brother-in-law) refused to answer questions on his family circumstances -- HC 81 paras 3, 13.

Visitor -- Genuine visitor -- Assessment of intentions -- Questioning by Immigration Officer on arrival -- Passenger Pakistan citizen legally employed in France and holding sufficient funds for proposed short visit -- Admission that twice previously refused entry as visitor at other port, and claim made that two recent passports lost -- Refusal to answer questions on family circumstances -- Passenger's sponsoring brother-in-law also refusing to answer questions -- Whether Immigration Officer acted fairly in seeking detailed information on passenger's family circumstances -- Whether officer reasonably not satisfied that passenger intended no more than the proposed short visit -- HC 81 paras 3, 13.

Held:

S was a passenger from France, a Pakistan citizen. In August 1976 at Birmingham Airport he sought entry as a short-term visitor. He had in 1974 and 1975 been refused such entry at Dover; and he claimed he had lost two passports (one issued to him in Pakistan on which he had travelled to France as a visitor in 1973, and the other the replacement one issued to him in 1974). He showed the immigration officer a document issued by the French police confirming that he had permission to work in France, and another document from his present employer showing that he was on leave till the end of August. He had @ 270 in his possession and a return ticket to France. He told the immigration officer that he was married and that his wife and three children were in Pakistan, but when the officer asked him for more family details he became agitated and refused to answer further questions. S's sponsoring brother-in-law, who had come to the airport to meet him, refused to answer any questions when he learnt that S was detained. The immigration officer refused leave to enter, not being satisfied (under para 13 of HC 81 n1) that no more than a visit was intended. n1 Paragraph 13 of HC 81 provides as follows: "A passenger 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 the visit as stated by him and can, without working, support himself and any dependants for this period and meet the cost of the return or onward journey. Visitors coming to stay with relatives or friends are also to be admitted if the Immigration Officer is satisfied that no more than a visit is intended and that the support available is adequate. But in all cases leave to enter should be refused if the Immigration Officer is not so satisfied; and in particular leave to enter should be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted." S appealed to an adjudicator and his appeal was allowed after the adjudicator had heard evidence from S's brother-in-law. On the appeal of the immigration officer to the Tribunal, Held (allowing the appeal): The immigration officer had acted fairly and in good faith in attempting to question S further about his family and in the light of the two previous refusals of leave to enter and S's two lost passports; and when faced by S's refusal to answer further questions and the sponsor's refusal to answer any questions, the immigration officer had reasonable grounds for not being satisfied that S intended to stay only for the period as stated by him.

Counsel:

G. Treadwell for the appellant immigration officer. Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: Sir Derek Hilton (President), L. W. Chapman Esq, L. Golding Esq

Judgment One:

THE TRIBUNAL: The appeal was against the determination of an adjudicator (Mr J. R. Fletcher) allowing the appeal of the respondent against the refusal of leave to enter the United Kingdom as a visitor. We allowed the appeal and we now give our reasons. The respondent, a citizen of Pakistan born in 1938, sought leave to enter the United Kingdom from France on 8 August 1976 in order to visit his brother-in-law, Mohd Munir, for a short period of about 15 days. He had a return ticket and about @ 270. When questioned the respondent said he entered France as a visitor in 1973 and produced a document from the French police confirming that he had permission to work there. Having had various employments he was then working for Simca Ltd and showed a letter that he was on leave until the end of August. The respondent said that he had lost the passport on which he had travelled to France from Pakistan and that he had also lost in Paris the replacement passport issued to him in 1974. He admitted that he had been refused leave to enter at Dover in 1974 and 1975. During the interview with the respondent the immigration officer learnt that Mohd Munir was at the Airport and went to see him. When Mohd Munir was told that the respondent was detained for questioning he refused to answer any questions and left the Airport. The interview with the respondent was then resumed. He said that he was married and that his wife and three children were in Pakistan. When he was asked about his family details the respondent became agitated and demanded to know why he was being asked so many questions. It was explained to him that the immigration officer had to be satisfied that no more than a visit was intended. He was told that Mohd Munir had refused to answer any questions and had left. The respondent then demanded to be taken to see Mohd Munir. He was told that that was not possible but that he was free to try and contact anyone he wished. He then refused to answer any more questions and stated that he would return to Paris. The application was refused for the reasons set out in the appellant's explanatory statement as follows: "5. The appellant had asked for leave to enter as a visitor for 3 weeks, but I could not be satisfied at this point that he intended to stay only for this period. His persistence in endeavouring to enter the United Kingdom in spite of being refused entry twice previously indicated a stronger motive than a simple visit. He had a history of casual employment in France, having entered that country as a visitor, and it seemed possible that he was now investigating the possibilities of work in this country. However, it was not possible to resolve doubts about his intentions because he and his sponsor refused to answer further questions. At this point in the examination the balance of the evidence seemed against him and I was not satisfied that he was merely a visitor. I referred the case to HM Chief Immigration Officer, Mr C. Jayne, who agreed that the appellant should be refused leave to enter under s 3(1)(a) of the Immigration Act 1971 in accordance with para 13 of HC 81 n2, Statement of Immigration Rules for Control on Entry. My colleague, Mr C. D. Harbin, immigration officer, served the appellant with Home Office form IS 82c Notice of Refusal of Leave to Enter and form IS 87, Notice of Appeal to an adjudicator, and the contents were explained to him in Urdu with the assistance of Mr Tripp. Arrangements were made for his removal to Paris on British Airways Flight BE 258 at 0830 on 9.8.76. The appellant was then detained at Birmingham Airport Detention Suite at 2230 hours on 8.8.76. n2 Paragraph 13 is set out in footnote 1. 6. No representations were received during the night. At 0630 the following morning the appellant again asked to be taken to see Mohd Munir. I told him that the latter had made no effort to contact the office during the night and therefore did not appear to be interested in helping him; I could not therefore agree to his request and the appellant departed as directed." At the hearing of the appeal before the adjudicator evidence was given by Mohd Munir. In his testimony he gave details about himself, his family and the respondent, and said that he refused to answer questions at the airport because he had previously in 1975 at Dover answered questions for one and a half hours. The adjudicator allowed the appeal, concluding his determination (dated 26 May 1977) thus:

"There was no doubt, Mr Sheikh contended, that the appellant was legally settled in France and enjoyed well-paid employment. On no occasion had he made any attempt to deceive the immigration officer; he was in possession of a return ticket he had himself paid for. He had been in this well-paid lucrative employment for 9 months. n3 Having heard all the evidence, including that of Mohd Munir, I feel it has been shown on the balance of probabilities by the appellant that only a visit was intended and that he would leave the United Kingdom at the end of his three weeks' visit. I have carefully considered all the material in this case, and I take the view, particularly bearing in mind that the appellant is well settled in lucrative employment in Paris and that it would be unlikely that he would be able to obtain similar employment in the United Kingdom having regard to the present employment position, that there is no reason to suppose the appellant would remain here, and accordingly the appeal is allowed and I direct that a visa for a three-week visit permit should be issued to him."

n3 When interviewed at Birmingham Airport on 8 August 1976 Mr Sadiq had said that he had been working for Simca Ltd for 8 days only, and that he was currently on holiday because it was 'the works annual holidays'. The Tribunal granted leave to appeal on the following grounds: "1. The adjudicator erred in finding that the appellant had discharged the onus on him to show, on the balance of probability, that only a visit was intended. 2. The adjudicator ought to have dismissed the appeal because the onus was on the appellant to satisfy the immigration officer as to his intentions, and at the time when the appellant refused to answer further questions the immigration officer was reasonably and properly not satisfied that no more than a visit was intended. The appellant's failure to answer further relevant and necessary questions about his family circumstances (para 3 of Statement) meant that it was not possible for him to so satisfy the immigration officer. 3. The adjudicator erred in law in failing to consider the fact in his determination that the appellant refused to answer material questions put to him by the immigration officer as required by para 3 of HC 81. n4" n4 Paragraph 3 of HC 81 provides, inter alia, that "Everyone arriving in the United Kingdom is liable to be examined and must furnish the Immigration Officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given." Mr Treadwell accepted that the respondent had a return ticket and funds and that he was lawfully resident in France and on leave from Simca Ltd, but he submitted that there were features in the evidence which had put the immigration officer on guard and necessitated further questioning. In his submission the immigration officer had acted fairly and reasonably, and the adjudicator had not directed his mind to the refusal of the respondent to answer further questions. In reply Mr Chishti referred us in detail to the evidence. His case was that the immigration officer had not acted fairly and in good faith: he had sufficient evidence before him to decide the application and on such evidence he ought to have been satisfied that the visit was a genuine one. Decision Although the respondent had a return ticket and funds and was legally working in France, the evidence showed that he had been refused entry on two previous occasions and had lost two passports. On that evidence we consider that the appellant acted fairly and in good faith in attempting to question the respondent further. n5 n5 See footnote 4. In our view the appellant, faced with the respondent's refusal to answer further questions and the refusal of the sponsor to answer any questions, had reasonable grounds for not being satisfied that the respondent intended to stay only for the period as stated by him. We are unable to agree with the conclusions of the adjudicator. On the available evidence we consider that the decision appealed against was in accordance with the law and the immigration rules applicable. For these reasons the appeal is allowed.

DISPOSITION:

Appeal allowed.

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