R v. Secretary of State for the Home Department, Ex parte Jayakody

R v Secretary of State for the Home Department, ex parte Jayakody

COURT OF APPEAL, CIVIL DIVISION

[1982] 1 All ER 461, [1982] 1 WLR 405, [1981] Imm AR 205

Hearing Date: 27 NOVEMBER 1981

27 NOVEMBER 1981

Index Terms:

Immigration -- Leave to enter -- Non-patrial -- Right of entry -- Duty to disclose facts -- Vitiation of leave to enter by non-disclosure -- Immigrant seeking entry only required to disclose material facts decisively affecting grant of leave to enter -- Failure to disclose immaterial facts not vitiating leave to enter.

Held:

The applicant, a Sri Lankan, was a married man whose wife was living in England while training as a nurse. He applied in Sri Lanka for an entry clearance certificate to enter England, stating that he was a single man because he thought that if he disclosed that he was married he would not obtain entry clearance. Entry clearance was issued to him as a single man. On his arrival in England the immigration officer granted leave to enter as a visitor for two months on the basis that he was single. The applicant joined his wife and overstayed for two months'. He then disclosed to the Home Office that he was married and applied for his leave to enter to be extended until his wife had completed her training. The Home Office decided that he should be treated as a person who had overstayed his leave to enter, rather than as an illegal entrant, but nevertheless refused an extension of leave to enter. The applicant, as he was entitled to do, appealed against that refusal to an adjudicator who held that because the applicant had obtained leave to enter by deception, namely by failing to disclose that he was married, he was an illegal entrant and could not be a person who had overstayed his leave. The adjudicator, therefore, allowed the appeal, without considering the merits, on the ground that the refusal of the extension of leave was erroneous. In consequence of that decision the applicant was notified by the immigration officer that he was an illegal entrant and would be granted temporary admission pending his removal from the country. He applied for an order of certiorari to quash that decision of the immigration officer. The judge dismissed the application on the ground that the immigration officer who originally granted leave to enter, if he had known that the applicant was a married man, might properly have refused him leave, and therefore the applicant's failure to disclose that he was married had vitiated the leave to enter and he was an illegal entrant. The applicant appealed. Held -- The only positive duty of disclosure imposed on an immigrant seeking entry into the United Kingdom was a duty to disclose to the immigration officer facts material to his entry, ie facts which were decisive to the grant of leave to enter, in that if they were disclosed an immigration officer would be bound to refuse entry or would in all probability refuse entry. It followed that leave to enter was induced by deception, and thus vitiated, only if the deception was in regard to material facts and leave would definitely or in all probability not have been granted but for the deception. Since, even if the immigration officer had known that the applicant was married, he might nevertheless have granted him leave to enter as a visitor for two months to visit his wife, the applicant was not under a duty to disclose that he was a married man since it was an immaterial fact. It followed that the leave to enter was valid and had not been vitiated by the applicant's non-disclosure of his married status. Accordingly, since the applicant was a person who had overstayed his leave and was not an illegal entrant, he was entitled to have his appeal against the Home Office's refusal to extend his leave heard on the merits. The appeal would therefore be allowed and the case remitted to the adjudicator for further hearing of that appeal (see p 463 g to j and p 464 a to g, post). R v Secretary of State for the Home Dept, ex p Zamir [1980] 2 All ER 768 distinguished.

Notes:

For leave to enter the United Kingdom, see 4 Halsbury's Laws (4th edn) para 976.

Cases referred to in the Judgment:

R v Secretary of State for the Home Dept, ex p Zamir [1980] 2 All ER 768, [1980] AC 930, [1980] 3 WLR 249, HL.

Cases cited in the Judgment:

Goordin v Secretary of State for the Home Dept [1981] CA Bound Transcript 368.

Introduction:

Appeal. Don Raymond Shirley Jayakody applied, with the leave of Forbes J, hearing the Divisional Court List, on 23 February 1980, for an order of certiorari to quash the declaration of an immigration officer made on 14 November 1980 that the applicant was an illegal entrant and to direct his removal from the United Kingdom. By a judgment given on 5 June 1981 Glidewell J, hearing the Divisional Court List, dismissed the application. The applicant appealed. The facts are set out in the judgment of Lord Denning MR.

Counsel:

Michael Beloff QC and Paul Rose for the applicant. Simon D Brown for the Secretary of State for the Home Department. PANEL: LORD DENNING MR, DUNN AND FOX LJJ

Judgment One:

LORD DENNING MR. Mr Jayakody comes from Sri Lanka. His wife came before him in 1975 and worked here as a nurse. He came later in 1976. Before he came he went to the British High Commission in Colombo. He told them that he was a single man. He got an entry clearance. He came here, and was given leave to enter as a visitor for two months. He joined his wife here. Afterwards he applied for extension of his leave. He then told the truth. He said that he was a married man and wanted to stay here with his wife. He admitted that he had told a lie previously. But he did so under a misconception. He though that otherwise he would be denied entry. The Home Office looked into the case. They regarded him as an over-stayer. They did not give him an extension. Thereupon, as he was entitled to do, on the basis of being an over-stayer, he appealed to an adjudicator. When the adjudicator heard the case, it took a surprising turn. The adjudicator said the Home Office had got it all wrong. He held that Mr Jayakody was not an over-stayer; that he was an illegal entrant from the beginning; that he had got in by deception; that he had not disclosed the fact that he was a married man; that he had said untruthfully in Colombo that he was a single man. So the adjudicator held that he was an illegal entrant. He allowed the appeal. But that did Mr Jayakody no good. Seeing that he was an illegal entrant, it meant that he could be removed at once. He could not appeal in this country. He would have to go back to Sri Lanka and appeal from there. On 14 November 1980 the immigration officer gave this notice to him: 'Having considered all the information available to me, I am satisfied that there are reasonable grounds to conclude that you are an illegal entrant... I have therefore authorised your temporary admission', and so forth. So there is the position. He was ordered out, or could be removed out, as an illegal entrant. Thereupon, on his behalf an application was made in the Divisional Court for a judicial review on the ground that the decision of the immigration officer was erroneous; that Mr Jayakody was not an illegal entrant at all, but that at most he was an over-stayer; and that the adjudicator ought to have heard his appeal on the merits. Glidewell J said it was a story like Alice in Wonderland -- an over-stayer being turned into an illegal entrant. He did not interfere with the decision of the immigration officer. He dismissed the appeal. Now there is an appeal to us. I turn now to the facts on which the Home Secretary decided originally that Mr Jayakody was an over-stayer. They are:

'The Secretary of State considered the circumstances of entry to this country of the appellant. He noted that the appellant told the immigration officer that he was coming here for a 2 month visit and that he had subsequently applied to remain here until his wife had completed her nursing training. The Secretary of State considered that the appellant may not have disclosed to the immigration officer an intention to remain in the United Kingdom with his wife. Bearing in mind that failure to disclose is not the same as deception and that the appellant might well have been given leave to enter to visit his wife had the true situation been known, the Secretary of State considered that there was insufficient evidence on which to conclude that deception had been employed of a kind that has been regarded by the courts as vitiating a leave to enter given. Accordingly the Secretary of State regarded the leave to enter as valid.'

The question is whether that direction to himself by the Secretary of State was correct. It has been said that every person coming here is under a duty of candour and that non-disclosure is to be regarded as deception. In R v Secretary of State for the Home Dept, ex p Zamir [1980] 2 All ER 768 at 773, [1980] AC 930 at 950 Lord Wilberforce said:

'In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance.'

Those words 'a change of circumstances' relate to the particular facts in Zamir's case. A young man got entry clearance on the basis that he was unmarried and coming in as a dependant. In truth since the entry clearance was obtained there had been a 'change of circumstances' in that he had got married since then and was therefore disqualified from entry. He did not disclose that 'change of circumstances'. If he had disclosed it, beyond doubt the Home Secretary would have refused his entry; indeed he would have been bound to refuse it. That is very different from our present case. I can understand that an immigrant is under a positive duty to disclose material facts, but I do not think he is under a duty to disclose facts which are not material. What facts then are to be regarded as 'material facts'? I think that they are facts which are of a decisive character. They must be such that, if he had disclosed them, the Home Secretary would have been bound to refuse him entry or on which the Home Secretary would in all probability have refused him entry. A parallel which counsel for the applicant mentioned to us comes from contracts of insurance in which there is a positive duty to disclose. Chitty on Contracts (24th edn, 1977) para 3926 says: '... the true test is probably whether the insurer in question would have been influenced applying the standard of the judgment of a prudent insurer.' It is not sufficient that he might have been influenced: it must be that he would have been influenced. So here the important question is this: would the Home Secretary have been bound to refuse, or would he in all probability have refused, the entry if it had been disclosed? On the facts of this case, the answer is No. Even if the immigration officer had known all the true facts, even if he had known he was a married man, nevertheless he might have granted him leave to enter as a visitor for the two months so as to keep in touch with his wife and to visit her here. So, that being so, it seems to me the facts here were not material facts which Mr Jayakody was bound to disclose. Glidewell J referred to a Home Office policy statement issued by a sub-committee to immigration officers. It said:

'It has been understood by the Home Office that for a leave given by an Immigration Officer to be regarded as vitiated, thereby rendering the passenger an illegal immigrant, the deception practised on the Immigration Officer must be (a) deliberate and (b) material, that is sufficient to influence an Immigration Officer to grant leave which he would otherwise have bound to have refused.' The judge held that was not the right test. But I think it was right, subject to this small addition: which he would otherwise have been bound to have refused or would in all probability have refused. With that extension the Home Office policy seems to be correct as an application of the law.

Coming back to what I said at the beginning, the deception must be of a decisive character. It is only decisive if, if the immigrant knew the true facts and did disclose them, the immigration officer would have been bound to refuse or would in all probability have refused the entry: otherwise, if the deception is neutral, as in our present case, it is not of such a decisive character and the leave to enter is not vitiated. The result is that the leave to Mr Jayakody to enter as a visitor was valid. He was not an illegal entrant but an over-stayer. After his leave has come to an end, he can appeal to the adjudicator and the adjudicator can hear and decide the matter on the merits. The adjudicator here was wrong to say on his own initiative, 'I am not going to deal with this because I think he is an illegal entrant'. The appeal should be allowed. The matter must be remitted accordingly.

Judgment Two:

DUNN LJ. I agree. Counsel for the Secretary of State supported this appeal. He relied on the Home Office policy document, to which Lord Denning MR has referred, as stating in general terms what facts are material as being facts in respect of which the immigrant owed a positive duty of candour. But he sought to implement the Home Office policy statement in this way. He said that the leave is only induced by deception, and thus vitiated, if the leave would not have been given but for the deception, that is to say the deception was decisive, so that on the true facts the immigrant was not eligible for, or, as a matter of discretion, would have been bound to have been refused the leave he was granted. R v Secretary of State for the Home Dept, ex p Zamir [1980] 2 All ER 768, [1980] AC 930 was a case in which the immigrant was not eligible under the rules: hence the deception in Zamir was decisive. But counsel for the Secretary of State pointed out that there may be other cases, for example where the immigrant is entering as a visitor, when the element of discretion in the immigration officer arises. Counsel said that if in those circumstances the immigration officer would have been bound, on the true facts, to exercise his discretion against allowing entry, then the facts are material and once again the deception would have been decisive. Speaking for myself, I accept the test in the precise terms proposed by counsel for the Secretary of State, and I, too, would allow this appeal.

Judgment Three:

FOX LJ. I agree. I too would accept the test in the terms formulated by counsel for the Secretary of State.

DISPOSITION:

Appeal allowed; matter remitted for further consideration.

SOLICITORS:

M Hetty & Co (for the applicant); Treasury Solicitor.

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