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

REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte KHAWAJA

COURT OF APPEAL (CIVIL DIVISION)

[1982] 2 All ER 523, [1982] 1 WLR 625

Hearing Date: 17, 18, 26 February 1982

26 February 1982

Index Terms:

Immigration -- Limited leave to enter -- Application to extend stay -- False representations on obtaining leave to enter -- Detention as illegal entrant -- Whether detention valid -- Whether right of appeal to adjudicator -- Immigration Act 1971 (c. 77), s. 14 (1), Sch. 2, para. 16 (2) -- Statement of Changes in Immigration Rules (1980) (H.C. 394), para. 88

Held:

In August 1979 the applicant, a middle-aged Pakistani national who was enrolled as a student in Brussels, applied for a visa to visit the United Kingdom for two weeks. While his application was being processed he arrived at Manchester Airport on March 17, 1980, with a return ticket. He said that he had come for a week to visit a cousin and was granted limited leave to stay for one month by an immigration officer. A woman, B., who had arrived on the same aircraft produced a passport with an entry in 1977 of "indefinite leave to enter." She told a different immigration officer, who did not know of the applicant's entry, that she had divorced her previous husband and remarried the applicant. She was allowed to enter. The applicant went to solicitors who applied on April 11, 1980, for an extension of his visa so that he could visit members of his family. On April 29, 1980, the applicant's solicitors stated that he had married B. on April 10, 1980, and applied on his behalf for indefinite leave for him to remain in the country. Inquiries indicated that although B.'s former marriage had not been finally dissolved until April 3, 1980, she had gone through a Muslim marriage with the applicant in Brussels in December 1979 before the marriage on April 10, 1980. The Home Office concluded that since the applicant had obtained limited leave of entry by deception he was an "illegal entrant" under the Immigration Act 1971. A detention order was made against him under the Act.The applicant applied for judicial review to quash the detention order on the ground that he was not an illegal entrant but an overstayer who was entitled to appeal to an adjudicator under section 14 (1) of the Act of 1971 and he relied on paragraph 88 of the Statement of Changes in Immigration Rules (1980) (H.C. 394). n1 Forbes J. dismissed the application. n1 Statement of Changes in Immigration Rules (1980) (H.C. 394), para. 88: see post, p. 628E-F. On appeal by the applicant: -- Held, dismissing the appeal, that the position of a person who had obtained leave to enter by fraud or deception was the same whether the leave granted was indefinite or limited; that paragraph 88 of the Statement of Changes in Immigration Rules (1980) (H.C. 394) contemplated that not all "false representations in obtaining leave to enter" vitiated such leave; that when the fraud or material deception was discovered the Secretary of State could either avoid or affirm the leave; and that, since the applicant had made a false and fraudulent representation that he intended to stay only a short time whereas he had conspired to stay indefinitely the Secretary of State had been entitled to treat him as an illegal entrant with no right of appeal to an adjudicator (post, pp. 628H -- 629A, C, D, G -- 630A, G). Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930, H.L.(E.) applied. Reg. v. Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 W.L.R. 405, C.A. distinguished. Per Donaldson L.J. Although the decision of the Secretary of State in the instant case cannot be attacked on ordinary principles of administrative law, where the Secretary of State decides to avoid a leave of entry his decision is reviewable by the courts. If he does not avoid the leave of entry, it will remain effective to form a basis for a variation and to give an adjudicator jurisdiction if the Secretary of State declines to vary it (post, p. 630E-H). Decision of Forbes J. affirmed.

Cases referred to in the Judgment:

Mackender v. Feldia A.G. [1967] 2 Q.B. 590; [1967] 2 W.L.R. 119; [1966] 3 All E.R. 847, C.A. Reg. v. Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 W.L.R. 405; [1982] 1 All E.R. 461, C.A. Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930; [1980] 3 W.L.R. 249; [1980] 2 All E.R. 768, H.L.(E.).

Cases cited in the Judgment:

Reg. v. Secretary of State for the Home Department, Ex parte Goordin (unreported), July 31, 1981; Court of Appeal (Civil Division) Transcript No. 0368 of 1981, C.A.

Introduction:

APPEAL from Forbes J. The applicant, Salamatullah Khawaja, applied for judicial review and an order of certiorari to quash a decision of the immigration authorities at Manchester holding that the applicant was an illegal entrant under the Immigration Act 1971 and authorising his detention under paragraph 16 (2) of Schedule 2 to the Act, and an order of mandamus to direct the Secretary of State for the Home Department to determine according to law his application for variation of leave on April 11, 1980. On November 11, 1981, Forbes J. dismissed the application. The applicant appealed on the grounds that the Divisional Court erred in law in holding that the applicant was an illegal entrant within the meaning of the Immigration Act 1971. The facts are stated in the judgment of Lord Denning M.R.

Counsel:

Sibghatullah Kadri for the applicant. Andrew Collins for the Secretary of State.

Judgment-READ:

Cur. adv. vult. February 26. The following judgments were read. PANEL: Lord Denning M.R., Eveleigh and Donaldson L.JJ.

Judgment One:

LORD DENNING M.R. This case is about Salamatullah Khawaja, the applicant. He was born in Pakistan in 1940. He did well and became the manager of a silk mill at Lahore. In October 1978 he enrolled at the University of Brussels as a student for an industrial course for two years. Whilst there in August 1979 he applied to the British Embassy for a visa to come to the United Kingdom as a visitor for two weeks. This application took some time to process. Meanwhile the immigration authorities were told -- by an informant -- that he had paid @ 10,000 to a Pakistani woman in England -- by name Mrs. Butt -- so as to facilitate his entry into the United Kingdom. So the British Embassy in Brussels were instructed to refuse his application to come here. But the applicant did not wait for the refusal. He jumped the gun. Whilst his application was being processed -- and before the result of it was known -- he came to England on March 17, 1980.He arrived at Manchester Airport and told the immigration officer that he had come for one week to visit his cousin here. He was in possession of a return ticket for March 23, 1980. It appeared genuine. So the immigration officer granted him limited leave to stay for one month. It so happened that on the same aircraft there was this Mrs. Butt. She went to a different desk at Manchester Airport. She produced a passport. It described her as Mrs. Butt going back to 1973, and containing in 1977 an entry of "indefinite leave to enter." She told the immigration officer that she had divorced her husband, Mr. Butt, and had remarried the applicant. There was an entry to this effect in her passport. So she was allowed to enter. The immigration officer did not know that the applicant had got in at a different desk. The applicant went to solicitors in Rochdale. On April 11, 1980, the solicitors applied for an extension of his visa. They said: "Our client has come to this country to visit the several members of his family here, whom he has not seen for many years, having been studying for some time at Brussels University. Our client wishes to obtain an extension of his visa and we enclose herewith his passport for consideration by your department of his request, and endorsement of the passport if granted." The Home Office by this time were on their guard. They looked into the matter closely. It then appeared that Mrs. Butt had a chequered history. She had married a Mr. Butt in Rochdale in 1975. She had got a decree nisi of divorce on January 24, 1980. It was made absolute on April 3, 1980. Meanwhile, in December 1979, she had gone through a Muslim marriage with the applicant in Brussels. On April 10, 1980, she married the applicant in Rochdale. Then on April 29, 1980, the applicant's solicitors applied for indefinite leave to remain. His solicitors made great play with his marriage to Mrs. Butt. They said: "Mr. Khawaja has since visited our office and informs us that he was actually married on April 10, 1980, to Mrs. Nusrat Butt, who was formerly known prior to her previous marriage to Mohammed Aslam Butt, as Nusrat Dar, (certificate enclosed herewith). Mrs. Butt was actually divorced from Mohammed Aslam Butt during 1979, having been given leave to enter the United Kingdom for an indefinite period, two years prior to that.

"Mr. Khawaja has asked to inform you that he now wishes to obtain indefinite leave to remain here himself and also that his wife is expecting a child by him in approximately one month's time. We are, therefore, asked to request you to consider his application for indefinite leave to remain here and we await to hear from you in reply."

The Home Office rejected his application. They made many inquiries and came to the conclusion that his leave to enter was vitiated by deception. They decided to treat him as an illegal entrant. They made a detention order on May 4, 1981, in these terms: "To Salamatullah Khawaja

"Having considered all the information available to me I am satisfied that there are reasonable grounds to conclude that you are an illegal entrant in accordance with the provisions of the Immigration Act 1971. I have therefore authorised your detention in Manchester Airport under the provisions of paragraph 16 (2) of Schedule 2 to the Act pending the completion of arrangements for dealing with you under the Act."

The applicant applied at once for judicial review. He asked for the detention order to be quashed on the ground that he was not an illegal entrant but an overstayer. The difference is of the first importance. If he is treated as an illegal entrant, he has no appeal whilst in this country. He must go back to Pakistan and appeal from there. But, if he is treated as an overstayer, he can appeal here to an adjudicator and can remain here until his appeal is finally determined, which may be a long time. Now when an immigrant obtains "indefinite leave to enter" -- and that leave is vitiated by fraud or non-disclosure -- it is clear that he is an "illegal entrant" and can be deported. If he wishes to appeal, he must do it from overseas: see Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930. The present case is different, says Mr. Kadri. Because the applicant obtained a limited leave to enter. It was for one month. He then applied for a variation so as to have it extended. Such a case, says Mr. Kadri, is governed by paragraph 88 of the Statement of Changes in Immigration Rules (1980) (H.C. 394), which makes him an overstayer. It sets out the "principles to be followed in dealing with applications for variation of leave" and says:

"refusal will be the normal course if the applicant has made false representations in obtaining leave to enter (including the giving of undertakings, express or implied, which he has not honoured, as to the duration and purpose of his stay); if he has not observed the time limit or conditions subject to which he was admitted, or given leave to remain;..."

So Mr. Kadri says that refusal to vary only makes him an overstayer. It does not make him an illegal entrant. Whereas Mr. Collins says that his deception may sometimes make him an illegal entrant. In order to decide the point, much help is to be obtained from the cases on the effect of fraud on a simple contract or of non-disclosure on a contract of insurance.Such fraud or non-disclosusre does not automatically vitiate the contract. It only makes it voidable. It gives the other party a right to elect. When he discovers the deception, he can either avoid the contract or affirm it: see Mackender v. Feldia A.G. [1967] 2 Q.B. 590, 598. Likewise when a man obtains a limited leave to enter by fraud or non-disclosure. As soon as it is discovered, it is open to the Home Secretary either to avoid the leave or to affirm it. If he elects to avoid the leave, the effect is that the man is to be treated as an illegal entrant and liable, as such, to be detained and deported. But, if the Home Secretary elects to affirm the leave, the effect is that he is to be treated as an overstayer, who is at liberty to apply for a variation. If it is refused, he can appeal to an adjudicator and stay here until his appeal is disposed of. We were told by Mr. Collins that in most of these cases the Home Secretary treats the man as an overstayer. But that in cases of gross deception (by fraud or non-disclosure) he treats the man as an illegal entrant. I regard that as an entirely proper way of exercising his election. The Home Secretary looks into the case. If he thinks that the fraud or non-disclosure was of most material facts -- such that the immigration officer would in all probability have refused the leave altogether had he known the truth -- then the Home Secretary may treat the man as an illegal entrant. But if it was not of that character, he may treat him as an overstayer: see Reg. v. Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 W.L.R. 405. In our present case the applicant made a false and fraudulent representation that he intended to stay only one month: whereas, in fact, he had conspired with Mrs. Butt to stay indefinitely: and to give credence to it by going through a form of marriage with her. It was a piece of gross deception. The Home Secretary was quite entitled to treat him as an illegal entrant. I would dismiss the appeal accordingly.

Judgment Two:

EVELEIGH L.J. I have had the advantage of reading the judgments of Lord Denning M.R. and of Donaldson L.J., and I respectfully agree with them.

Judgment Three:

DONALDSON L.J. By section 14 (1) of the Immigration Act 1971 a person who has limited leave under the Act to enter and remain in the United Kingdom has a right of appeal to an adjudicator against any variation of the leave or against any refusal to vary it. A person who has unlimited leave has no need for any right of appeal and accordingly none is given. In Reg. v. Secretary of State for the Home Department, Ex parte Zamir [1980] A.C. 930, the House of Lords held that deception, whether active or passive, vitiates the permission to enter. In Reg. v. Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 W.L.R. 405 this court held that not every deception vitiated the permission to enter, but only deception of a decisive character. Paragraph 88 of the Statement of Changes in Immigration Rules (1980) (H.C. 394) states that where application is made to vary leave to enter or to remain, refusal will be the normal course if the applicant has made "false representations in obtaining leave to enter" and this phrase is amplified in parenthesis. The necessary implication is that in the abnormal course an application to vary may be granted in these circumstances. Mr. Kadri submits that since deception vitiates leave to enter and a valid and subsisting leave to enter is the necessary prerequisite of an effective application to vary, there is prima facie a contradiction between Zamir's case [1980] A.C. 930 and paragraph 88 of H.C. 394. He submits that this is resolved if Zamir's decision is confined to cases in which unlimited leave has been obtained and there is, in consequence, no question of any application to vary and no scope for the application of paragraph 88. I should be more attracted to this submission if I could see any logical basis for this distinction of if there was the slightest indication in Zamir's case that this was intended. Mr. Collins, for the Secretary of State, submits, and Forbes J. held, that paragraph 88 contemplates, as was held in Reg. v. Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 W.L.R. 405, that not every false representation will vitiate the leave to enter. Accordingly provision was made for how account should be taken of false, but nonvitiatory, representations. Normally they will be fatal to the application, but exceptionally they may not be. I have no doubt that Mr. Collins' submission is correct. It leaves a right of appeal to the adjudicator in the case of a minor, that is to say non-decisive, deceptions, but withholds it in the case of major deception. This is a logical way of resolving any superficial contradiction between Zamir's case [1980] A.C. 930 and paragraph 88 of H.C. 394, whereas a resolution based upon the nature of the leave originally given to the immigrant is not. This leaves the question of whether any particular deception is vitiatory and how this is decided. Initially the decision must be that of the Secretary of State or of authorised officers of the Home Department. But is there any appeal to the adjudicator? Section 14 gives a right of appeal only where the applicant has a valid leave under the Act and accordingly this issue goes to the adjudicator's jurisdiction. Prima facie no court or tribunal of limited jurisdiction has power to reach a binding decision on whether it has jurisdiction, but it can, and no doubt should, decline to act if satisfied in its own mind that it lacks jurisdiction. This situation has created difficulties. This can happen where the Secretary of State does not regard a particular deception as being sufficiently decisive to vitiate a leave to enter, but refuses an application to vary. If the applicant then appeals to the adjudicator, who declines to adjudicate because he considers that the deception vitiated the leave which forms the basis of his jurisdiction, the applicant is deprived of his right of appeal notwithstanding that the Home Secretary was quite content that he should have it. This problem does not arise on the facts of the present appeal, but it may be helpful if I say a word about it. In my judgment material deception vitiates leave to enter in the sense that it renders that leave voidable ab initio. It is for the Secretary of State to decide whether to avoid it. If he does so, his decision is reviewable by the courts on ordinary principles of administrative law. If he does not, the applicant will have no cause to complain and the leave to enter will remain effective to form a basis for a decision to vary it and to give the adjudicator jurisdiction if the Secretary of State declines to vary it. In the present case the Secretary of State has treated the applicant's leave to enter as voidable ab initio and he has avoided it. It is conceded that this decision cannot be attacked on ordinary principles of administrative law. It follows that there is no extant leave to enter and no jurisdiction in the Secretary of State or, on appeal, in any adjudicator to make any variation. I would dismiss the appeal.

DISPOSITION:

Appeal dismissed. No order as to costs.

SOLICITORS:

Charnley & Afzal, Manchester; Treasury Solicitor.