Immigration Officer, Heathrow v. Mirani

Immigration Officer, Heathrow v Mirani

Immigration Appeal Tribunal

[1990] Imm AR 132

Hearing Date: 10 November 1989

10 November 1989

Index Terms:

Immigration Officer -- power to search passengers -- whether an immigration officer was entitled to rely on information derived from documents discovered during a search -- whether adjudicator correct in allowing an appeal because a passenger was not given a choice whether or not to reveal personal documents. Immigration Act 1971 sch 2 paras 2,4.

Held:

The respondent a citizen of Australia was refused leave to enter the United Kingdom as a visitor. A diary found during a search by immigration officers suggested that the respondent was disillusioned with life in Australia: it cast doubts on his stated intention that a visit to the United Kingdom of only three months was intended. On appeal, the adjudicator commented adversely on the search by immigration officers. He observed that there was no indication that the respondent had been given a genuine choice whether or not to produce such personal material. He then wrote "I do not propose to place any reliance on the material produced, or on any information elicited as a result of it." He allowed the appeal. The immigration officer appealed. Held: 1. The adjudicator had misdirected himself. An immigration officer was empowered to carry out a search under paragraphs 2 and 4 of schedule 2 to the 1971 Act. 2. There was no justification in law for excluding consideration of evidence derived from such a search. 3. On reviewing the evidence as a whole the immigration officer's refusal of leave to enter was justified and the appeal would be allowed.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

AJ Mercer for the appellant; the respondent was not represented. PANEL: DL Neve Esq (President), Mrs M Padfield JP, AG Jeevanjee Esq Judgment By-1: DL NEVE ESQ (P)

Judgment One:

DL NEVE ESQ (P), (Reading the Determination of the tribunal). The respondent is a citizen of Australia, who arrived in this country on 12 December 1986 seeking entry for 3 months as a visitor. After interview, he was refused leave to enter. He appealed to an adjudicator against the refusal. His appeal was heard by Mr J Freeman and was allowed on 29 June 1989. 1Against Mr Freeman's determination the immigration officer now appeals to the Tribunal. He was represented before us by Mr AJ Mercer. Although the respondent has been properly served in accordance with the procedure rules with a hearing notice and he is aware of the existence of the United Kingdom Immigrants Advisory Service (by whom he was at one time represented), there has been no appearance on his behalf. When the respondent arrived he was in possession of @140, a valid American Express Card and a confirmed booked return ticket for 11 January 1987. He said that he had @2,640 in his bank account in Australia which he could call upon if necessary. He had no documentary proof of this. The immigration officer made repeated attempts to contact the Mr Anderson with whom he wished to stay, but these were unsuccessful. The respondent was found to be in possession of his personal diary, a copy of which is upon the file. This is written in a rambling manner but it clearly indicates that the respondent is totally disillusioned with life in Australia -- or at least with his job there -- and evidences a desire to get away from Australia. It also contains references to taking the drug smack. When questioned by the immigration officer he admitted that he had occasionally used heroin and marijuana for many years. The immigration officer summarises his reasons for refusing the respondent entry as follows: "In assessing the passenger's application for leave to enter for three months as a visitor I first noted that he had a return ticket to Australia via Rome and Bombay. Whilst the funds he had with him were clearly inadequate for his proposed length of stay and he had no evidence of his claimed additional savings in Australia, he did have a close relative in this country with whom he could reside and whom he seemed to know reasonably well. I further noted, however, that he had given up his employment in Australia and admitted that he had no plans to return to work there. Instead he claimed that on his return home at some as yet unknown time in the future he would become a student but confessed that he had made no arrangements or enquiries in this direction and indeed did not know what subject he would study. In addition, I noted that the passenger had given up his rented accommodation in Australia and this, coupled with the references in his personal diary regarding his disillusionment with his way of life and personal circumstances in that country, led me to have doubts, despite his protestations to the contrary, as to his intention to return there in the near future. Finally the passenger had an admitted history of drug abuse and his attitude during his interview was frequently erratic and obstructive to the extent that I found it difficult not to conclude that he was at times being less than frank in some of his replies. Thus, in view of the foregoing I was on balance not satisfied that the passenger was genuinely seeking entry as a visitor only for the limited period of three months and therefore, with the authority of Mr A Featch, Chief Immigration Officer, refused him leave to enter the United Kingdom under section 3(1)(a) of the Immigration Act 1971 and in accordance with paragraph 17 of HC 169." The respondent's grounds of appeal in his appeal to the adjudicator read as follows: "I, Neil Andre Mirani, am appealing against the decision to refuse me entry to the United Kingdom on the basis that I had sufficient money (which had been transferred from Australia to a London bank account), a return ticket to Australia, access to other money in Australia, and a valid American Express Card. I have never been denied entry into a country, and have no criminal record. The holiday that I had planned in the United Kingdom was sightseeing. I was intending to stay with my uncle, Mr Homer Anderson, for the greater part of my holiday in the United Kingdom. Thanking you for consideration of my appeal." In his determination of the appeal the adjudicator records: "The respondent made his decision on the ground that the appellant would not be a genuine short-term visitor. The main reason for this was his dissatisfaction with life in Australia, as shown by entries in his diary. Other entries showing drug use (confirmed by the appellant in interview), were also relied on, though it is difficult to see what that can have to do with the question of whether the appellant intended to leave at the end of his planned visit. There is no explanation of why the respondent found it necessary to refer to the appellant's diary, or to a letter to his girlfried (who was with him). I can imagine a situation where an appellant might be given a genuine choice whether or not to produce such personal material rather than leave a respondent unsatisfied as to his intentions. However, there is nothing in the papers to show that this appellant was given such a choice, and I do not propose to place any reliance on the material produced, or on any information elicited as a result of it." He therefore went on to allow the appeal. At the appeal before us Mr Mercer has submitted that the adjudicator misdirected himself in the passage recorded above, and that he should have taken into consideration the diary. In his submission, in any event the diary was not the only ground relied upon by the immigration officer for his refusal, as appears from the paragraph of his explanatory statement quoted above. We have considered Mr Mercer's submissions. The Tribunal finds that the adjudicator badly misdirected himself. An immigration officer is perfectly entitled to search a passenger, as provided for by paragraphs 2 and 4 of schedule 2 to the Immigration Act 1971. Unfortunately the adjudicator dealt with the appeal upon the papers, and consequently there was no Home Office presenting officer to advise him in this respect. Having ourselves taken into account the entries in the respondent's diary which are upon the file, together with the other matters relied upon by the immigration officer, we have come to the conclusion that the immigration officer was justified in refusing the respondent leave to enter, and that such refusal did not involve a wrong exercise of discretion. We ourselves would not have exercised our discretion differently. The immigration officer's appeal is accordingly allowed.

DISPOSITION:

Appeal allowed.