R v. Secretary of State for the Home Department, Ex parte Taj Mohammed Khan

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte Taj Mohammed KHAN

Court of Appeal (Civil Division)

[1985] Imm AR 104

Hearing Date: 2 July 1985

2 July 1985

Index Terms:

Temporary admission after refusal of leave to enter under immigration rules -- subject to conditions under Immigration Act -- subsequent marriage -- application for leave to remain under immigration rules -- whether the immigration rules that relate to an extension of leave apply to those admitted temporarily -- Immigration Act 1981, s 3, Schedule 2: HC 169 paragraph 1126.

Held:

The applicant on arrival sought admission as a visitor. He was refused leave to enter but was granted temporary admission subject to certain conditions. During that period he married a British citizen: he then went to ground. When his whereabouts were discovered he claimed the right to remain in the United Kingdom on the basis of his marriage and in accordancee with paragraph 126 of HC 169. The Secretary of State treated the applicant as an illegal immigrant to whom the immigration rules as to variation of leave had no application. Before the Court it was argued that being temporarily admitted under the provisions of Schedule 2 of the Immigration Act 1971, the appellant was "admitted in a temporary capacity" for the purposes of paragraph 126 of HC 169. Judicial review was sought, application having been refused at first instance. Held: 1) Paragraph 126 of HC 169 has no application to those admitted temporarily in accordance with Schedule 2 of the Act, after having been refused leave to enter in accordance with the Immigration rules. 2) The appellant had properly been treated as an illegal immigrant. R v The Secretary of State for the Home Department ex parte Sukbinder Singh [1984] Imm AR 156 affirmed.

Cases referred to in the Judgment:

Yemi Tejuoso (DC 3 October 1975) unreported. R v The Secretary of State for the Home Department ex parte Sukbinder Singh [1984] Imm AR 156. R v Immigration Appeal Tribunal, ex parte Alexander [1982] Imm AR 50; [1982] 1 WLR 1706.

Counsel:

AR Siddiq for the applicant; C Symons for the respondent. PANEL: Sir John Donaldson MR, Parker and Balcombe LJJ

Judgment One:

SIR JOHN DONALDSON MR: In this matter Mr Siddiq applies on behalf of Taj Mohammed Khan for judicial review of a decision by the Secretary of State to remove him from the United Kingdom. We gave leave to apply, despite the refusal by the single judge, because the single judge was not told by counsel who then appeared on behalf of Mr Khan that he wished to challenge a decision of Forbes J on 25 September 1984 in the case of R v The Secretary of State for the Home Department, ex parte Sukbinder Singh, and a decision of the Divisional Court on 3 October 1985 in the matter of Yemi Tejuoso. The learned judge no doubt refused leave on the basis of those decisions. Had he been told that the applicant wished to challenge them, for my part I do not doubt that he would have given leave. We having heard that this was the wish of Mr Siddiq on behalf of his client therefore gave leave and decided that there would be no point in remitting the matter to the High Court for hearing, which is the normal practice in the very rare cases in which this court gives leave to apply, because of course the High Court would be bound by those decisions. So I approach the matter de novo, in the sense that we are not bound by those decisions, under both of which Mr Khan would be an illegal immigrant without rights in this country. I now turn to the facts. On 13 January 1982 the applicant, who is a citizen of Pakistan, arrived at Heathrow and sought leave to enter and remain for a period of three months as a visitor. The story which he told the immigration officer was that he wanted to visit a cousin, and he added that he was engagage to a girl in Pakistan. It is a fact that that statement was untrue and was made knowing that it was untrue. It was made because Mr Khan had been told that if he said, as was the fact, that he wanted to enter this country to marry a woman who was a citizen of the United Kingdom and Colonies, it is unlikely that he would have been admitted. Certainly a great many inquiries would have been made which were irrelevant if he wasmerely seeking to come here on a visit to a cousin and had no intention of marrying while he was here. It so happened that the immigration officer did not accept his story and refused him leave to enter. But he operated a procedure which is designed, no doubt on humanitarian grounds, to avoid persons who seek to enter the country and are denied leave having to remain in the airport waiting room awaiting a 'plane to leave. He operated a procedure which gave Mr Khan a temporary right to leave the airport subject to certain conditions. One of the conditions was that he should reside with his cousin. The particular document concerned is included in a bundle provided by the respondent. It is headed "Immigration Act 1971 -- Notice temporarily releasing a person detained or liable to be detained". It recites: "On 13.1.82 you [Mr Khan] were examined by an Immigration Officer under paragraph 2(1) of Schedule 2 to the Immigration Act 1971. On 13.1.82 you were refused leave to enter the United Kingdom under paragraph 16 of Schedule 2 to the Act

AND

are liable to be detained under paragraph 16 of Schedule 2 to the Act. Under the terms of paragraph 21 of Schedule 2 to the Act I hereby authorise your temporary admission to the United Kingdom subject to the following restrictions." Then there is the restriction of living at a particular address, which was the house of the cousin, and it goes on to say:

"[You] must report to an Immigration Officer at this office on 17.1.82 at 16.15 hrs."

The form ends with this paragraph:

"Temporary admission under the terms of this notice does not prejudice a later exercise of the power to detain you; nor does service of this notice constitute notice of leave to enter the United Kingdom."

I shall have to return to the paragraphs of the Schedule to the Act which are mentioned in that notice in a moment. To conclude the facts, the requirement to report on the 17 January was vacated by a subsequent notice, and indeed there were a series of extensions, but on 17 February, 1982 Mr Khan was informed that removal directions had been set for 21 February. Mr Khan appears to have celebrated the receipt of this information by getting married to the lady whom he had come here to marry. The cousin learned that not only had he married this lady, but that he intended to disappear. In accordance with his duty as a citizen, the cousin informed the immigration service of this expressed intention on the part of Mr Khan. The immigration officers went to the house and found that the applicant had indeed disappeared, no doubt with his wife. He was not seen or heard of for a period of nearly two years when his whereabouts came to the attention of the Home Office on 10 January 1984. Since then he has been contending that, having married a British subject, he has an entitlement to remain in this country under paragraph 126 of HC 169. Having set the factual scene, I will now look at the statutory framework. Section 3 of the Immigration Act 1971 provides: "Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period" -- and (c) deals with the conditions. So the general scheme of the Act is that those who are not in a special category have to get leave to enter and remain. Section 11(1) of the Act is in these terms:

"A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer . . ."

If I might just pause, if the section stopped there, in certain circumstances areas in ports would become somewhat overcrowded. So the section continues:

". . . and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act."

So that covers the case where somebody disembarks and leaves a designated area of the port with the permission of the immigration authorities, being a person who is liable to be detained, but does so within an extended area in accordance with Schedule 2. I therefore turn to Schedule 2. Paragraph 2 provides for the examination by immigration officers of people arriving in the United Kingdom by ship or aircraft, which includes British subjects. Paragraph 16 provides: "(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. (2) A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given." I refer to that simply because it is picked up by paragraph 21, which provides: "(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him. (2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer." It is to be noted that what is contemplated here is temporary admission to the United Kingdom without leave to enter or remain. This is a species of extended port area and is a "without prejudice" admission to the United Kingdom. A man is entitled physically to enter the United Kingdom but, read with section 11, it is quite clear that he is not deemed to be an entrant for immigration purposes. So thus far Mr Khan is in great difficulties, because there is no possible basis in the statute for his claiming a right to enter. What he then does is to move to paragraph 126 of HC 169, which is in these terms:

"Where a man admitted in a temporary capacity marries a woman settled here, an extension of stay or leave to remain will not be granted, nor will any time limit on stay be removed, unless the Secretary of State is satisfied [of six matters]."

I do not think I need set them out because this case does not turn on whether the Secretary of State is or is not reasonably satisfied of those matters. What is said by Mr Khan is that he was a man admitted in a temporary capacity: in the words of paragraph 21 of the 2nd Scehdule, he was "temporarily admitted to the United Kingdom". As a person admitted in a temporary capacity, who has in fact married a woman settled here (she is a British subject), he says that an extension of stay should be granted under the latter part of paragraph 126, which says:

"Where the Secretary of State is satisfied that all the conditions of (a) to (f) above apply, the husband will be allowed to remain, for 12 months in the first instance . . ."

So the issue here is simple. Does paragraph 126 apply to those who are temporarily admitted to the United Kingdom under paragraph 21 of the 2nd Schedule to the Act? For my part I have not the slightest doubt that it does not. There is a dictum of Lord Roskill in R v Immigration Appeal Tribunal, ex parte Alexander [1982] 1 WLR 1076 at page 1080 which says:

"These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed. The rules give guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation."

For my part, I would accept that as being an accurate statement of the way in which these rules are to be approached. Approaching them in that way, I see that Part XI, which contains paragraph 126, is headed "Vaiation of leave to enter or remain". In other words, it is dealing with a situation where people have had leave to enter or remain and are seeking to get variations in that leave. If there is any doubt from the heading, it is removed by paragraph 94, which reads:

"Under section 3(3) of the Act a limited leave to enter or remain in the United Kingdom may be varied by extending or restricting its duration, byadding, varying or revoking conditions or by removing the time limit (whereupon any conditions attached to the leave cease to apply). The main purpose of this Part of the rules is to set out, in relation to the chief categories concerned, the principles on which leave to enter or remain will, on application, be varied. It also sets out the principles on which leave to remain will be given to a child born in the United Kingdom who has not obtained leave to enter. In the following paragraphs 'leave to enter' includes leave to remain."

It seems to me absolutely clear from paragraph 94 that the paragraphs in that part of the Act are concerned not with people who have been refused leave to enter, but with those who have been given leave to enter. It follows that there is no comfort to be obtained by Mr Khan from paragraph 126. It also follows from the sections of the Act, to which I have referred, that when he entered on temporary admission, he was still in the position of one who had been refused leave to enter. He was, to us the words of paragraph 21(2) of the 2nd Schedule, "at large in the United Kingdom" by virtue of that paragraph; and when he absented himself in breach of all the conditions and went to ground, he thereupon became an illegal immigrant, which status he holds to this day. Mr Siddiq did in the closing moments of his reply suggest that he ought to be able to argue that in these circumstances it was unreasonable in a Wednesbury sense for the Secretary of State to decide to remove Mr Khan. As to that, all I would say is that leave was never given to apply for judicial review on that basis and, on the materials available to us, if it had been given, I would unhesitatingly have rejected any application for judicial review. Accordingly I would dismiss the application.

Judgment Two:

PARKER LJ: I agree.

Judgment Three:

BALCOMBE LJ: I agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Sharma & Co; Treasury Solicitor.