Chanda v. Immigration Officer, London (Heathrow) Airport

CHANDA v IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/75343/81(2043)

Immigration Appeal Tribunal

[1981] Imm AR 88

Hearing Date: 2 June 1981

2 June 1981

Index Terms:

Appeal -- Right of appeal -- "Current entry clearance" -- Leave to enter refused to holder of student entry clearance because of his non-disclosure of material facts to obtain the clearance -- Leave to enter also refused by immigration officer under relevant student rules on his consideration of fresh representations by applicant at the port -- Whether right of appeal against second refusal exercisable by appellant while still in the United Kingdom -- Immigration Act 1971, s 13(1) & (3) -- HC 394, paras 13(a), 21, 22, 24.

Entry clearance -- Concealment of 'material facts' -- 'Student' entry clearance produced to port immigration officer -- Leave to enter refused on officer finding that the clearance was obtained by not disclosing material facts -- Leave also refused under student rule on immigration officer's consideration of fresh representations made to him -- Officer not satisfied that applicant would leave on completion of studies -- Appeal to adjudicator against officer's initial refusal dismissed -- Whether the appellant, as the holder of "a current entry clearance" was entitled to appeal while still in the United Kingdom against the officer's second refusal -- Immigration Act 1971, s 13(1) & (3) -- HC 394, paras 13(a), 21, 22, 24.

Jurisdiction -- Appeal -- Right of appeal while in the United Kingdom -- Holder of current entry clearance -- Clearance as student found ineffective by immigration officer by reason of misrepresentation made to obtain it -- Further refusal of leave to enter on officer's consideration of substantive student rules -- Officer not satisfied that appellant would leave at end of studies -- Whether right of appeal while still in the United Kingdom against immigration officer's refusal under the student rules -- Immigration Act 1971, s 13(1) & (3) -- HC 394, paras 13(a), 22, 24.

Held:

The appellant Commonwealth citizen arrived in this country holding a 'student' entry clearance. The immigration officer (the 'I.O.') who interviewed him on arrival decided that he had obtained that entry clearance by the non-disclosure of material facts and accordingly (under para 13(a) of HC 394) that he should not be admitted on that clearance. The I.O. then went on to decide, on a consideration of para 22 of HC 394, that the appellant did not qualify for entry as a student because he (the I.O.) was not satisfied that the appellant would leave the United Kingdom on completion of his studies. On appeal from the (semble, double) refusal of leave to enter the adjudicator upheld the I.O.'s decision that the entry clearance was ineffective by reason of the appellant's non-disclosure of material facts to obtain it but, following recent Tribunal precedents on the construction of s 13(3) of the Immigration Act 1971, decided that the appellant could not while still in the United Kingdom exercise his right of appeal against the refusal under the student rules. On appeal to the Tribunal against the adjudicator's decision on this jurisdictional point, it was submitted for the appellant that, inter alia, the words "current entry clearance" in s 13(3) of the 1971 Act meant current in time, so that the appellant in this case -- the clearance being valid for use for 6 months -- was 'still' the holder of a current entry clearance after it was declared to be ineffective; its vitiation did not amount to its annulment; and accordingly at the time of the refusal under the substantive student rule the appellant was still within the exception contained in the last sentence of s 13(3) and entitled to appeal against that refusal while in the United Kingdom. For the I.O. it was submitted to the Tribunal that there could be degrees of vitiation, and that s 13(3) of the 1971 Act enabled an I.O. in his discretion to consider the merits of the substantive claim to admission if he considered that any misrepresentation had not been too culpable or blameworthy; and then if he refused leave to enter on the substantive merits he could elect whether or not to rely before an adjudicator on the Tribunal's decisions in the cases of Kent Tak Lok and Kwan n1, namely whether or not to submit that there was no jurisdiction in the adjudicator to determine an appeal on the substantive merits of the application for entry while the appellant was still in the United Kingdom. n1 Kent Tak Lok v Immigration Officer, Gatwick, TH/68500/80(1911) d 4.12.80; Ngen Chung Kwan v Immigration Officer, Gatwick, TH/70577/80(1929) d 6.1.81. Held: (i) the Tribunal agreed with the suggested construction of the word "current" in s 13(3) of the 1971 Act which had been submitted for the appellant and, accordingly, the case would be remitted to the adjudicator (under r 21 of the Immigration Appeals (Procedure) Rules 1971) for him to determine the appeal on the substantive merits under the relevant student rules. Per curiam (on a re-consideration of earlier decisions on the same jurisdictional point and following the suggested construction of the word "current" in s 13(3) as meaning current in time): the Tribunal was now satisfied that a person who had been refused admission at a port of entry at a time when he held a current entry clearance had a right of appeal in this country against refusal, for any reason, to admit him, notwithstanding the fact that the I.O. had found his current clearance to be ineffective (see p 92 and footnote 6 post). (ii) the Tribunal did not accept the I.O.'s argument: whether or not an appellant could exercise his right of appeal whilst in this country was not a matter which an immigration officer had an option to decide. The relevant statutory law and rules are set out in the determination below.

Counsel:

A. McGeachy of the United Kingdom Immigration Advisory Service for the appellant. R. D. Lloyd, Chief Immigration Officer, for the respondent. PANEL: D. L. Neve Esq, President, P. N. Dalton Esq & A. Hooton Esq, Vice-Presidents

Judgment One:

THE TRIBUNAL: This appeal concerns the vexed question whether a person who arrives in this country in possession of an entry clearance has a right of appeal whilst in this country not only against a refusal to admit him by virtue of his entry clearance but also, his entry clearance having been held to be ineffective (by reason of the matters set out in para 13 of HC 394), against refusal to admit him because he does not otherwise qualify for entry under the immigration rules. This question was considered by the Tribunal in the cases of Kent Tak Lok n2 and Ngen Chung Kwan n3, and the Tribunal held that there was a right of appeal whilst in this country against the refusal of admission by virtue of possession of an entry clearance, but that the right of appeal against a refusal to admit such a person because he did not otherwise qualify under the immigration rules (for example, as a student) could only be exercised from abroad. n2 Kent Tak Lok v Immigration Officer, Gatwick, TH/68500/80(1911) d 4.12.80; for a summary of the facts of this case see Note on p 93, post. n3 Ngen Chung Kwan v Immigration Officer, Gatwick, TH/70577/80(1929) d 6.1.81; an extract from the Tribunal's determination in this case is given in the Note on p 93, post. At the conclusion of the Kwan case n3, the Tribunal said: "In coming to this conclusion it is not unconscious of the force of Mr McGeachy's arguments and if a suitable occasion arises would welcome the testing in the High Court of Justice of its interpretation of the law in this appeal and that of Kent Tak Lok". Unfortunately no such occasion has arisen and we have not had the advantage of guidance from a superior authority. The point having arisen again in this case, however, we have taken the opportunity of sitting with three full-time Chairmen to reconsider the matter. n3 Ngen Chung Kwan v Immigration Officer, Gatwick, TH/70577/80(1929) d 6.1.81; and extract from the Tribunal's determination in this case is given in the Note on p 93, post. The appellant Mr Noble Chanda is a citizen of Zambia who arrived in this country in possession of a "student" entry clearance. For reasons which we need not go into the immigration officer who interviewed him on arrival decided that his entry clearance had been obtained by the non-disclosure of material facts and that his clearance was accordingly ineffective to qualify him for admission. He also decided that he did not qualify for entry as a student on a different course from that presented to the entry clearance officer because he (the immigration officer) was not satisfied that he would leave the United Kingdom on completion of his studies. He refused him admission. The appellant appealed to an adjudicator against the refusal and his appeal came before Mr C O Richards. The adjudicator dismissed his appeal against the refusal to admit him by virtue of his entry clearance, which he found had been obtained by the non-disclosure of material facts, but -- following the decisions of the Tribunal in the two cases to which we have referred -- held that he had no jurisdiction to entertain the appeal against the decision that the appellant did not qualify for entry as a student whilst he was still in this country. The Tribunal granted leave to appeal against this decision to enable the matter to be considered in the manner we have mentioned. The question before us arises out of the provisions of s 13(1) and (3) of the Immigration Act 1971 and out of para 13 of HC 394. Section 13 of the Act, in so far as it is relevant, reads: "13(1) Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal. (3) ... 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." Paragraph 13 of HC 394 reads: "13. A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the immigration officer is satisfied that: (a) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the clearance, or (b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission, except where the change of circumstances amounts solely to the person becoming over age for entry under paragraphs 46 or 47 since the issue of the entry clearance, or (c) refusal is justified on grounds of restricted returnability, on medical grounds, on grounds of criminal record, because the passenger is the subject of a deportation order or because exclusion would be conducive to the public good. The scope of the power to refuse leave to enter on these grounds is set out in paragraphs 15 and 71-76." The cases of Kent Tak Lok and Kwan were decided on the basis that when it was found that entry clearance had been vitiated by misrepresentation or otherwise it was as if no such entry clearance had ever existed. Thus a passenger arriving with such entry clearance should not enjoy an advantage (the right of appeal whilst in this country) over a passenger arriving without entry clearance. Mr McGeachy asked us to find that these cases were wrongly decided. He pointed out that they involved a departure from what had previously been considered to be the law not only by this Tribunal (which we had already appreciated), but also tacitly by the Divisional Court in the case of Alexander n4, heard on 7 November 1980. In his submission the expression 'current entry clearance', used in s 13(3) of the Act, meant current in 'time'. 'Current' was defined in the Concise Oxford Dictionary as 'in general circulation or use, belonging to the current time'. An entry clearance was usually issued for use within six months, and during these six months it was 'current'. 'Current entry clearance' should not be construed to mean 'valid entry clearance'. Support for this contention could be found in the opening sentence of para 13 of HC 394, "A passenger who holds an entry clearance which was duly issued and is still current...". The use of the word "still" connoted that it was a valid entry clearance at the time of the passenger's arrival and brought him within the exception contained in the last sentence of s 13(3) of the Act. Vitiation of an entry clearance did not amount to the same thing as an annulment of it. n4 R v Immigration Appeal Tribunal, ex parte Kamalawathie Alexander, (unreported). Alexander's Case was concerned with student admission under HC 79. The immigration officer at the port had found that Miss Alexander had obtained a student entry clearance by false representations on material facts connected with her family (TH/34520/78(1406) d 16.11.78)) and therefore that she failed to meet the requirements of para 12 of HC 79, (the paragraph corresponding to para 13 of HC 394). The I.O. then went on to consider whether Miss Alexander could meet the student requirements pertaining where a person arrived without an entry clearance. It was not suggested that such a course of action was improper, nor that the subsequent adverse decision of the immigration officer was not appealable by Miss Alexander while in this country, under s 13(3) of the 1971 Act. The adjudicator allowed Miss Alexander's appeal; the Tribunal reversed the adjudicator's decision. On the issue whether a person not holding a current (and valid) entry clearance as a student could be admitted for a short period under para 21 of HC 79 if the immigration officer was not satisfied, inter alia, that he intended to leave at the end of his proposed study, the Divisional Court (Donaldson LJ and Forbes J) held that the immigration officer need not be satisfied on that part of para 19; the Court of Appeal, to which the Tribunal then appealed, quashed the Divisional Court's decision, holding by a majority (Lord Denning MR and Watkins LJ, Oliver LJ dissenting) that an immigration officer before admitting a potential student under para 21 of HC 79 must be satisfied that he intends to leave this country on completion of his proposed study. The judgments of the Court of Appeal d 28 October 1981 are reported at p 175, post. On 21 January 1982 the Appeal Committee of the House of Lords granted leave to appeal, and in due course (17 June, 8 July 1982) reversed the majority decision of the Court of Appeal. (Reported, sub nom Alexander v Immigration Appeal Tribunal, in [1982] 1 WLR 1076; [1982] 2 All ER 766.) In reply Mr Lloyd submitted that there could be degrees of vitiation. Section 13(3) enabled an immigration officer to refuse entry to a person with an entry clearance but, if he considered that any misrepresentation employed had not been too culpable or blameworthy, then he might consider the merits of the substantive claim to entry; and on a subsequent appeal to an adjudicator he might similarly elect whether or not to rely on the Tribunal's determinations in Kent Tak Lok and Kwan n5. n5 See Appendit on these two cases. We are unable to accept Mr Lloyd's argument. Either an appellant has a right of appeal whilst in this country or he has not, and in our view this is certainly not a matter which an immigration officer has an option to decide. Having carefully considered Mr McGeachy's submissions -- and we are indebted to him for his carefully researched and lucidly presented arguments -- we have come to the conclusion that we were in error in deciding the two cases to which we have referred in the way that we did. In our reconsidered judgment a person who has been refused admission at a port of entry "at a time when he held a current entry clearance" (and we agree with Mr McGeachy's suggested construction of the word 'current') has a right of appeal in this country against refusal, for any reason, to admit him, notwithstanding the fact that the immigration officer has found his current clearnance to be ineffective. n6 n6 In the context of this determination the Tribunal did not find it necessary to enlarge on or qualify the words 'for any reason'. However, if a claim for leave to enter after the failure of an entry clearance under para 13 were to be made in a new capacity, one which specifically required that an entry clearance be produced at the port of entry -- such a pre-requisite being laid down in HC 394 for many categories -- it may be that the adjudicator would decide that he should properly dismiss an appeal to him against the refusal to admit on such a claim simply on the ground that no entry clearance in that capacity had been obtained for the purpose of admission. In the present case and in the cases of Kent Tak Lok and Kwan entry was permissible in the capacity of student without the production of an entry clearance (see para 24 of HC 394). In these circumstances this appeal is remitted under r 21 of the Immigration Appeals (Procedure) Rules 1972, to Mr Richards (to whom no criticism can be directed for following our earlier decisions) for him to determine the appellant's appeal against the decision that he did not fulfil the requirements relating to students in the relevant immigration rules.

DISPOSITION:

Case remitted to the adjudication.

APPENDIX:

APPENDIX

Note on the cases of Kent Tak Lok, TH/68500/80(1911), d 4.12.80, and Ngen Chung Kwan, TH/70577/80(1929) d 6.1.81. The substance of these two cases (heard by different Tribunals) appears in the following passage of the Tribunal's determination in Kwan's Case (pp 7-8 of the transcript): "In Kent Tak Lok the appellant, a citizen of the United Kingdom and Colonies (Hong Kong) arrived at Gatwick Airport in possession of an entry clearance. His clearance was for a visit. He admitted that he had obtained this clearance by deception, his intention being not just to make a visit to this country but to take a course of study here. His clearance was held to be ineffective and accordingly the immigration officer was not required to grant him leave to enter by reason of his possession of it. It was claimed that the appellant nonetheless qualified for entry as a student under para 24 of HC 394. The immigration officer was not satisfied that he so qualified, so he was refused permission. The adjudicator (who was the same adjudicator as the adjudicator whose determination is the subject of the present appeal) decided that once the entry clearance had been successfully challenged under para 13 of HC 394 the appellant was not entitled to a further appeal, whilst remaining in the United Kingdom, against a refusal to admit him as a passenger not holding entry clearance. In giving his reasons for his determination Mr Phillips said:

'The appellant's right of appeal while he is in the United Kingdom is founded upon his possession of a current entry clearance and the view I take is that once a current entry clearance has been successfully challenged under para 13

of HC 394 the appellant ceases to have any further right of appeal in the United Kingdom. It may very well be that after an appellant has failed by reason of para 13 of HC 394 it is proper for an immigration officer to make a fresh start and treat him as a passenger seeking admission without an entry certificate but I do not think, in such circumstances, that the passenger is entitled to a second appeal against an adverse decision while remaining in the United Kingdom." "In a reserved determination the Tribunal upheld the adjudicator's view of the law. It said:

'In our opinion the adjudicator's interpretation of the law and rules was correct. Paragraph 13 of HC 394 clearly enables an immigration officer to refuse leave when he is satisfied that a passenger's entry clearance has been obtained by misrepresentation, and this power is also provided for in para 67. The passenger has a right of appeal in this country against such a refusal, but if the refusal is found to be correct the entry clearance is vitiated by the misrepresentation and it is as if no such entry clearance has ever existed. The passenger is then in the position of a person arriving without a current entry clearance; and his application for admission in some other capacity (e.g. as a student), if refused, can only give rise to a right of appeal against such refusal from abroad, by virtue of s 13(3) of the Immigration Act quoted above'.

"There are indeed some differences of fact in the case of Kent Tak Lok from those in the present appeal. In that case the appellant's entry clearance was as a visitor and his application, after the entry clearance was held to be in-effective, was to enter as a student. In the present case the appellant's entry clearance was for study, and his application, after his entry clearance was held to be ineffective, was to enter in the same capacity, namely as a student. The Tribunal does not however consider that this difference of fact affects the interpretation of s 13(3) of the Immigration Act 1971 or of its application. The general rule laid down in that subsection is that a person cannot appeal against a refusal of leave to enter whilst he is in the United Kingdom. An exception is made for persons refused leave to enter at a port of entry when in possession of a current entry clearance. Thus a person who arrives at a port of entry without having first applied for and obtained entry clearance can only appeal against refusal of entry after leaving the United Kingdom. It seems to the Tribunal that a person who has obtained an entry clearance by deception can be in no different position as regards his right of appeal than one who has never had an entry clearance. If this is the correct view it follows that the right of appeal whilst in the United Kingdom extends only to an appeal against a decision that the applicant has no right to enter by virtue of his entry clearance, and that it does not confer a right of appeal while in the United Kingdom against a refusal on other grounds."

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