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

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

COURT OF APPEAL, CIVIL DIVISION

[1984] 3 All ER 257, [1984] 1 WLR 1269, [1984] Imm AR 101

Hearing Date: 21 JUNE, 6 JULY 1984

6 July 1984

Index Terms:

Immigration -- Leave to enter -- Non-patrial -- Leave to enter obtained by deception -- Entrant subsequently found to be illegal entrant -- Whether leave given when it was not known that entry was illegal a relevant consideration when deciding whether to give directions for summary removal of entrant -- Immigration Act 1971, Sch 2, para 9.

Immigration -- Leave to enter -- Non-patrial -- Leave to enter obtained by deception -- Entrant subsequently applying for variation of leave -- Leave extended pending determination of application -- Whether extension of leave untainted by original deception -- Whether applicant entitled to remain in United Kingdom until application formally determined and right of appeal exhausted -- Immigration (Variation of Leave) Order 1976, art 3(1).

Held:

On 2 January 1981 the applicant, whose wife was settled in the United Kingdom, obtained leave to enter as a visitor for one month. Some days after his arrival in the United Kingdom he applied to the Home Office for a variation of his leave to enable him to remain in the United Kingdom permanently. He obtained an extension of leave, pursuant to art 3(1) of the Immigration (Variation of Leave) Order 1976, pending the determination of his application. No decision was made on his application for variation of his leave because when his case was investigated the Home Office concluded that he had obtained his original leave to enter for a month by deceit and that he was therefore an illegal entrant. Accordingly, in August 1982 the immigration officer gave directions for his removal, under para 9 of Sch 2 to the Immigration Act 1971, which provided that 'Where an illegal entrant is not given leave to enter or remain . . . an immigration officer may give . . . directions' for his removal from the United Kingdom. The applicant sought judicial review of the immigration officer's direction on the grounds that he was not a person who had 'not [been] given leave to enter or remain' because (i) although his original leave had been obtained by deceit it nevertheless constituted leave under the 1971 Act and could not be disregarded for the purposes of summary removal, and (ii) that, because art 3(1) provided that an applicant for a variation of leave automatically had leave to remain until 28 days after a decision had been made on his application and no such decision had been made, the applicant therefore had leave, which was untainted by deceit, by virtue of art 3(1) at the time of the immigration officer's direction. The judge dismissed the application. The applicant appealed to the Court of Appeal, contending further that, since the Secretary of State had failed to comply with the requirement in s 4(1) Held -- The appeal would be dismissed for the following reasons-- (1) Although it was established that leave to enter the United Kingdom obtained by fraud could still be leave for the purposes of the 1971 Act, leave to enter given at a time when it was not known that an entry was illegal was to be treated as irrelevant for the purposes of para 9 of Sch 2 to the 1971 Act. It followed that, where it was shown that leave to enter had been obtained by fraud, there was power under para 9 to direct the removal of the applicant (see p 260 d to f and p 261 b to d and g h, post) Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765 considered. (2) A person who had obtained leave by fraud could not insist on the determination of any application by him to vary the terms of that leave. Furthermore, leave granted under art 3(1) of the 1976 order merely extended the original leave and did not constitute a new and different leave. It followed that, where the original leave was tainted by deceit, the extended leave was similarly infected and could not be relied on. Moreover, although the Secretary of State had not complied with the requirements of s 4(1) of the 1971 Act, that did not assist the applicant because his application had been based on fraud and he could not be allowed to profit from his wrongdoing by insisting on the determination of his application for a variation of the terms of the leave fraudently obtained. In any event, although an appeal against a deportation order under s 14 would stay the order pending its outcome, summary removal under para 9 was a wholly different procedure to which s 14 had no application. It followed that the immigration officer had been entitled to give directions for the applicant's removal (see p 261 b c and f to h, post).

Notes:

For illegal entry into the United Kingdom, see 4 Halsbury's Laws (4th edn) paras 976, 1027. For the Immigration Act 1971, ss 4, 14, Sch 2, para 9, see 41 Halsbury's Statutes (3rd edn) 22, 35, 64. For the Immigration (Variation of Leave) Order 1976, art 3, see 2 Halsbury's Statutory Instruments (4th reissue) 69.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, [1983] 2 WLR 321, HL.

Cases cited in the Judgment:

R v Secretary of State for the Home Dept, ex p Ali Kul (27 March 1984, unreported), QBD. Suthendran v Immigration Appeal Tribunal [1976] 3 All ER 611, [1977] AC 359, HL. The applicant, Ruben Lapinid appealed against the decision of Woolf J, hearing the Crown Office List on 5 July 1983, whereby the judge dismissed an application for judicial review by way of (i) an order of certiorari to quash the decision of an immigration officer given on 5 August 1982 under para 9 of Sch 2 to the Immigration Act 1971 that the applicant was an illegal entrant who was to be summarily removed and (ii) a declaration that the applicant was not an illegal entrant under the 1971 Act. The facts are set out in the judgment of the court.

Counsel:

Alper Riza for the applicant. John Laws for the Secretary of State.

Judgment-READ:

Cur adv vult 6 July. The following judgment of the court was delivered. PANEL: SIR JOHN DONALDSON MR, GRIFFITHS AND BROWNE-WILKINSON LJJ

Judgment One:

BROWNE-WILKINSON LJ. This is an appeal from the dismissal by Woolf J of an application by Mr Lapinid to quash the decision of HM Immigration Office directing his removal from the United Kingdom under para 9 of Sch 2 to the Immigration Act 1971. Mrs Lapinid, who is Filipino by birth, has been in the United Kingdom since 1973. Since 1980 she has been entitled to stay here indefinitely without conditions and is settled here. As long ago as 1974 the applicant (who was then engaged to Mrs Lapinid) applied unsuccessfully to join her in the United Kingdom. After the applicant and Mrs Lapinid were married in 1976, further unsuccessful attempts were made to enable the applicant to live here. On 28 February 1980 (immediately after Mrs Lapinid's own right to remain here became unconditional) she applied to the Home Office for the applicant to be permitted to join her in the United Kingdom. Unfortunately new immigration rules had recently changed the practice that had hitherto applied and the Home Office informed Mrs Lapinid that the applicant would need a visa. The applicant having obtained a visa for the purposes of a visit only, on 21 June 1980 he was admitted to this country for six months. He and his wife then travelled outside the United Kingdom and returned to this country on 2 January 1981. The applicant was then given one months' leave to enter as a visitor. On 12 January 1981 he applied to the Home Office for a variation of his leave to enter to enable him to remain permanently in the United Kingdom with his wife. That application to vary has never been formally determined. But his case was investigated by the Home Office, who reached the conclusion that the applicant was an illegal entrant. On 5 August 1982 the immigration officer gave directions for the removal of the applicant under para 9 of Sch 2 to the 1971 Act. In the mean time the applicant and his wife had had a child who was born on 20 October 1981. The ground on which the Home Office reached the conclusion that the applicant was an illegal entrant was that the leave to enter given to him on 2 January 1981 had been obtained by deceit. That conclusion was challenged before the judge, who, although sympathetic to the quandary in which the applicant and his wife found themselves, held that the leave had been obtained by deceit and that accordingly the applicant was an illegal entrant. Although counsel for the applicant does not admit that there was in fact deception, there is no appeal against that part of the judge's judgment and the case has been argued on the basis that the applicant is an illegal entrant, leave to enter having been obtained by his deceit. The statutory provisions directly applicable are contained in paras 8, 9 and 10 of Sch 2 to the 1971 Act. Paragraph 8 provides that where a person arriving in the United Kingdom is refused leave to enter, the immigration officer may give directions to the person responsible for his arrival (e g the owners of the ship or aircraft by which he arrived) to remove him. Paragraph 9 then provides:

'Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1).'

It will be seen that in order to come within para 9 apparently two requirements have to be satisfied, viz (a) that the person is an illegal entrant and (b) he is not given leave to enter or remain. Until the recent decision of the House of Lords in Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74 it had been established that the effect of obtaining leave to enter or remain in the United Kingdom by deceit was to render the leave so obtained void or voidable. On that basis, para 9 presented no problems: the entrant satisfied both requirements of para 9 since he was both an illegal entrant and (any leave he obtained being void or voidable) he could not be a person who had leave to enter or remain. However, as counsel for the applicant in his most able argument has demonstrated, the decision in Khawaja makes that approach no longer possible. Counsel for the Secretary of State accepts that the speech of Lord Bridge establishes that, notwithstanding that leave was obtained by deceit, for the purposes of the 1971 Act such leave falls to be treated as leave and cannot be ignored. The applicant is an 'illegal entrant' because he has obtained such leave by means rendered criminal by s 26 of the Act and therefore he falls within the definition of 'illegal entrant' in s 33(1) of the 1971 Act. But the leave so obtained still constitutes leave for the purposes of the Act. On this foundation counsel for the applicant submits that although the first requirement of para 9 (i e that the applicant is an illegal entrant) was satisfied in this case, the second requirement (i e that he had no leave to enter) was not satisfied since the leave to enter of 2 January 1981 though obtained by deceit cannot be disregarded. Moreover, he says that at the material time the applicant had leave to enter or remain by reason of the Immigration (Variation of Leave) Order 1976, SI 1976/1572, art 3(1) of which provides:

'Where a person has leave to enter or remain in the United Kingdom for a limited period and applies to the Secretary of State before the expiry of that period for such limited leave to be varied, then, except in a case falling within paragraph (2) below, the duration of his leave shall, by virtue of this Order, be extended until the expiration of the twenty-eighth day after the date of the decision on the application.'

Counsel for the applicant submits that at the date of the direction to remove the applicant he enjoyed leave to enter not by virtue of the original leave obtained by deceit on 2 January 1981 but by virtue of a fresh leave enjoyed by virtue of the 1976 order and that no deceit affects this latter leave. In our judgment, although the speech of Lord Bridge in Khawaja provides the basis for counsel for the applicant's argument, it also shows the argument to be erroneous. In that case, Mr Khawaja obtained by deceit leave to enter the United Kingdom for one month. He applied for variation of his leave. After the expiry of the one month for which he had obtained leave, steps were taken for his summary removal under Sch 2. Therefore in all material respects (including the fact that the leave enjoyed by Mr Khawaja at the time he was removed must have been under the 1976 order) the facts of that case are indistinguishable from the present case. Yet the House of Lords held that the steps taken to remove Mr Khawaja summarily under Sch 2 were not unlawful. In our judgment, even though counsel for the applicant's exact argument was not advanced to the House of Lords in Khawaja, the decision in that case requires us to hold that the decision to remove the applicant was lawful. Moreover, in the course of his speech Lord Bridge did advert to the power of summary removal under para 9. He said ( [1983] 1 All ER 765 at 788, [1984] AC 74 at 119):

'Next, I would point out that the process of reasoning which I have suggested as justifying the conclusion that a person who obtains leave to enter by fraud is an illegal entrant avoids the necessity to characterise the leave to enter itself as a nullity. It is for the immigration authorities to decide whether or not to seek to secure the summary removal of an illegal entrant by invoking their powers under Sch 2. If they do not do so, the leave to enter stands.'

Later he said ( [1983] 1 All ER 765 at 790--791, [1984] AC 74 at 122--123):

'A person who has entered the United Kingdom with leave and who is detained under Sch 2, para 16(2) pending removal as an illegal entrant on the ground that he obtained leave to enter by fraud is entitled to challenge the action taken and proposed to be taken against him both by application for habeas corpus and by application for judicial review. On the view I take, para 9 of Sch 2 must be construed as meaning no more and no less than it says. There is no room for any implication qualifying the words ''illegal entrant''. From this it would follow that, while, prima facie, the order for detention under para 16(2) would be a sufficient return to the writ of habeas corpus, proof by the applicant that he had been granted leave to enter would shift the onus back to the immigration officer to prove that the leave had been obtained in contravention of s 26(1)(c) of the Act, in other words by fraud.'

And later he said ( [1983] 1 All ER 765 at 791--792, [1984] AC 74 at 124):

'Accordingly, I have no doubt that when a person detained and proposed to be removed as an illegal entrant enjoys the right to be in this country in pursuance of leave to enter and remain here which is valid on its face the onus lies on the immigration officer to prove the fact that the leave was obtained by fraud in contravention of s 26(1)(c) of the 1971 Act.'

These passages are consistent only with the view that, if it is shown that the leave to enter has been obtained by fraud, there is power under para 9 of Sch 2 to direct removal of the applicant notwithstanding that in one sense he has 'leave to enter'. In our judgment, the 1976 order can make no difference: it does not provide that there shall be a new and different leave to enter but merely extends the period of permitted stay granted by the original leave. Any such extension will be infected with the same vice as the original leave, the period of which has been extended. Although it is established by Khawaja that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under para 9, the words of para 9 itself do not readily fit in with this conclusion once it is established that the original leave to enter is not invalid. The only explanation is that adopted by the judge in this case, viz that the words of para 9, 'Where an illegal entrant is not given leave to enter . . .' are to be read as meaning 'where a person known to be an illegal entrant is not given leave to enter . . .' This construction produces the result that leave to enter given at a time when it is not known that an entrant is illegal is irrelevant for the purposes of para 9. Counsel for the applicant put forward an alternative argument, not advanced before the judge. He submitted that s 4(1) of the 1971 Act requires that where there has been an application to vary the terms of leave to enter there has to be a determination of that application and such determination has to be exercised by notice in writing to the person affected. The application to vary the applicant's leave to enter has never been so determined. If it had been determined, s 14 of the 1971 Act gives a right of appeal and provides that an appellant shall not 'be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending'. Counsel for the applicant submitted that the Secretary of State cannot, by failing to determine the application as he should, prejudice the appellant's position and status of irremovability which he would enjoy under s 14. In our judgment, counsel for the Secretary of State has provided a complete answer to this new submission. First, a person who has obtained leave by fraud cannot insist on the determination of any application by him to vary the terms of leave so fraudulently obtained: a man cannot profit by his own wrongs. Second, the words in s 14(1), 'be required to leave', refer to the words in s 5(1) of the Act, where the effect of a deportation order is described as being an 'order requiring him to leave'. The words in s 14(1) have no application to the quite different summary procedure under Sch 2, para 9, which does not 'require the applicant to leave' but directs someone else to remove him. Therefore, in our judgment this new argument cannot succeed. For these reasons, although we share the judge's sympathy for the plight of Mr and Mrs Lapinid, the judge was quite right in holding that the immigration officer has acted lawfully within the ambit of his powers and the appeal must be dismissed.

DISPOSITION:

Appeal dismissed. No order for costs. Leave to appeal to the House of Lords refused. 21 February 1985. The Appeal Committee of the House of Lords (Lord Fraser, Lord Roskill and Lord Bridge) dismissed a petition by the Applicant for leave to appeal.

SOLICITORS:

Winstanley-Burgess (for the applicant); Treasury Solicitor.