R v. Secretary of State for the Home Department, Ex parte Bugdaycay; Regina v. Same, Ex parte Nelidow Santis; Regina v. Same, Ex parte Norman

Court of Appeal (Civil Division)

[1986] 1 All ER 458, [1986] 1 WLR 155, [1986] Imm AR 8

Hearing Date: 3, 4 October, 5 November 1985

5 November 1985

Index Terms:

Immigration -- Illegal entrant -- False statement -- Limited leave to enter on basis of false statement -- Non-disclosure of intention to stay as refugee -- Admission on arrest -- Application for asylum -- Secretary of State refusing application -- Whether illegal entrant -- Whether review of decision on refugee status within court's jurisdiction -- Immigration Act 1971 (c 77), ss 4(1), 33(1)

Held:

The three appellants arrived in the United Kingdom on different dates and they gave, unknown to immigration officers, untrue reasons for their coming here. Each of them was granted temporary leave to stay subject to restrictions. The appellants, B and N, stayed on without making any application for an extension. After they were arrested they admitted that they had not told the truth and had, in fact, hoped to stay here. Neither of them wanted to return to his country for fear of being arrested for political activities. The chief immigration officer decided to treat them as illegal entrants within section 33(1) of the Immigration Act 1971 (Immigration Act 1971, s 4(1):

"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.") They applied for asylum but after inquiries the Secretary of State decided that they did not have a valid claim to asylum. The third appellant, S, told the immigration officer on entry that he wanted to spend 15 days in the United Kingdom on holiday. But eight days later he called at the Home Office where he made an application for asylum. He admitted during subsequent interviews that he had not told the immigration officer the truth because from the outset his intention was to apply for asylum. The Secretary of State refused his application and he was treated as an illegal entrant by immigration officers. The appellants applied for leave to apply for judicial review under RSC, Ord 53, r 3(2), seeking certiorari to quash those decisions. The judges dismissed those applications.

On the appeals which were heard together:-

Held, dismissing the appeals, (1) that where an intending entrant was given leave to enter the United Kingdom under the Immigration Act 1971 on the basis of a statement of particular facts but he subsequently admitted that the purpose of entry had been misrepresented and the facts misstated immigration officers were entitled to treat him as an illegal entrant within section 33(1) of the Act and it was not open to the entrant to contend that had he given the true facts and reason to the immigration officer he might have been given leave to enter (post, pp 160F-161A, 164A).

Reg v Secretary of State for the Home Department, Ex part Jayakody [1982] 1 WLR 405, CA applied.

(2) That section 4(1) of the Act gave the power to grant or refuse leave to enter the United Kingdom to immigration officers and the power to extend or vary such leave to the Secretary of State; and that, accordingly, it was for them to determine whether the appellants were refugees and there was no basis for the High Court to exercise its jurisdiction to determine that question or to determine the question whether the appellants should be granted asylum (post, pp 163A-D, D-E, G-H, 164A).

Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, HL(E) considered.

Decisions of Taylor J and Woolf J affirmed.

Cases referred to in the Judgment:

Reg v Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 WLR 405; [1982] 1 All ER 461, CA.

Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74; [1983] 2 WLR 321; [1983] 1 All ER 765, HL(E)

The following additional cases were cited in argument:

Reg v Chief Immigration Officer, Gatwick Airport, Ex parte Kharrazi [1980] 1 WLR 1396; [1980] 3 All ER 373, CA.

Reg v Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 WLR 766; [1977] 3 All ER 452, DC and CA.

Introduction:

APPEALS from Woolf J and Taylor J.

The appellants, Huseyin Bugdaycay, Michael Nelidow Santis and Daniel Tawiah Norman, applied severally for leave to apply for judicial review of decisions of the Secretary of State for the Home Department refusing each of the appellants asylum and of decisions of immigration officers in each case to treat the appellants as illegal entrants under the Immigration Act 1971. By a judgment dated 24 January 1984 Woolf J refused Mr Norman's application. By a judgment dated 28 June 1985 Taylor J refused the applications of Mr Bugdaycay and Mr Nelidow Santis.

The appellants appealed on the grounds, inter alia, that (1) the judges erred in law in holding (a) that the issue of whether a person was a refugee under the Convention and Protocol relating to the Status of Refugees (1951) now incorporated into United Kingdom immigration law was not a "jurisdictional fact" to be determined by the court, (b) that article 35(1) of the convention was concerned with co-operation at the diplomatic and international levels and that it is not possible for it to be invoked by individuals and (c) that the Secretary of State's election to proceed under paragraph 9 of Schedule 2 to the Act of 1971 rather than by way of refusal with a right of appeal under section

14(1) of the Act of 1971 was in that type of case an unimpeachable exercise of discretion; (2) the judges were wrong to hold that, on the evidence before them the appellants were not refugees.

The facts are stated in the judgment of Neill LJ.

Counsel:

JM Sullivan QC and AGL Nicol for Mr Bugdaycay; JM Sullivan QC and Alper Riza for Mr Nelidow Santis and Mr Norman; John Laws for the Secretary of State.

Judgment-READ:

Cur adv vult 5 November. The following judgments were handed down.

PANEL: Oliver, Neill and Balcombe LJJ

Judgment One:

NEILL LJ: Before the court are appeals in three separate immigration cases. By agreement the appeals were heard together because they raised the same questions under the Immigration Act 1971 and under the immigration rules which were laid before Parliament on 9 February 1983 in the Statement of Changes in Immigration Rules (1983) (HC169).

I propose to start by stating as shortly as possible the relevant facts concerning each of the three appellants.

Mr Bugdaycay

Mr Huseyin Bugdaycay appeals against the order of Taylor J dated 28 June 1985 whereby he dismissed Mr Bugdaycay's application for judicial review in respect of the decision of an immigration officer dated 23 May 1984 to treat Mr Bugdaycay as an illegal entrant and the decision of the Secretary of State in September 1984 refusing his application for asylum. Mr Bugdaycay's application was heard by Taylor J at the same time as the similar application by Mr Santis.

Mr Bugdaycay was born and brought up in Turkey. He is aged 30. He arrived in the United Kingdom on 20 August 1983. He told the immigration officer on entry that he wished to study English at a language centre in Manchester. As a result he was given leave to enter the United Kingdom for the period of three months as a student. Restrictions were imposed as to employment. However, Mr Bugdaycay remained in the United Kingdom after the expiration of the permitted period of three months though without making any application for an extension of his stay. There is no evidence that he ever attended the language centre in Manchester.

On 23 May 1984 Mr Bugdaycay was arrested at a restaurant in Guildford where he was working. On being interviewed he admitted that he had not told the immigration officer at the time of entry the truth and that he had in fact hoped to settle in the United Kingdom from the outset.

On the authority of a chief immigration officer it was decided that Mr Bugdaycay should be treated as an illegal entrant. This decision was made on 23 May 1984, the day of his arrest.

In the course of his interview, however, Mr Bugdaycay said that he did not wish to return to Turkey as he feared he would be arrested because of his political activities there. An application for asylum was then made on his behalf. As a result during the summer of 1984 Mr Bugdaycay was interviewed in connection with his claim for asylum. Certain discrepancies were noted however, in the various stories he told, and eventually in September 1984 it was decided that Mr Bugdaycay did not have a valid claim for asylum.

Mr Bugdaycay then sought to have the matter further considered and produced some additional evidence, but the Home Office adhered to their view and the decision not to grant asylum was confirmed in December 1984.

Mr Nelidow Santis

Mr Michael Nelidow Santis appeals against the order of Taylor J dated 28 June 1985 whereby he dismissed Mr Santis' application for judicial review in respect of the decision of the Secretary of State dated 3 July 1984 refusing him asylum and the decision of an immigration officer dated 16 July 1984 that he be treated as an illegal entrant.

Mr Santis was born and brought up in Chile. He is now aged 24. He arrived in the United Kingdom on 25 August 1983. He told the immigration officer at Heathrow that he wanted to spend 15 days in the United Kingdom on holiday. As a result he was given leave to enter the United Kingdom for the period of 15 days.

Eight days later on 2 September 1983 Mr Santis called at the Home Office building in Croydon where he made an application for asylum. In the course of the subsequent interview Mr Santis admitted that he had not told the immigration officer at Heathrow the truth because from the outset he had intended to apply for asylum and his story that he wished to spend 15 days in the country on holiday was untrue.

Mr Santis' application for asylum was investigated and he was interviewed again in January 1984. After consideration the Secretary of State decided on 3 July 1984 to refuse the application for asylum. On 16 July an immigration officer made the decision that Mr Santis should be treated as an illegal entrant. The question of asylum was further considered after a Member of Parliament had asked that the matter should be reviewed, but on 22 October 1984 the refusal of asylum was confirmed.

Mr Norman

Mr Daniel Tawiah Norman appeals against the order of Woolf J dated 24 January 1984 whereby he dismissed Mr Norman's application for judicial review in respect of the decision of a chief immigration officer to treat Mr Norman as an illegal entrant.

It is to be noted that Mr Norman did not make any formal application in respect of the decision to refuse to grant him asylum, but with the concurrence of Mr Laws, who appeared on behalf of the Secretary of State, the court allowed counsel for the appellants to put all the arguments he wished to raise in respect of each of the three appellants.

Mr Norman was born and brought up in Ghana. He is now aged 31. He arrived in the United Kingdom on 10 April 1982. There was an issue before the judge as to precisely what information he gave to the immigration officer on arrival. It is sufficient to say that he told the immigration officer that he had come to look for some machinery for use in connection with his business and that he intended to return to Ghana after a stay of some weeks.

As a result he was given leave to enter the United Kingdom for the period of one month. However, he remained in the United Kingdom after the expiration of the prescribed period of one month though without making any application for any extension of his stay.

On 4 January 1983 Mr Norman was arrested when police officers went to a house in north London looking for someone else. He was then interviewed. After questioning he admitted that he had not told the truth to the immigration officer at the time of entry in April 1982 but said that he wanted to remain in the United Kingdom as a refugee.

On 11 January 1983 Mr Norman made a formal application for the grant of asylum, submitting his application through the Joint Council for the Welfare of Immigrants. He was then interviewed in connection with his application for asylum and in the course of these interviews he gave an account of the reasons which had led him to come to the United Kingdom. Mr Norman's story was considered but on 18 March 1983 his application for asylum was refused. On 4 April 1983 a chief immigration officer made the formal decision that Mr Norman was to be treated as an illegal entrant.

In support of the appeals on behalf of each of the three appellants Mr Sullivan put forward three main arguments. These arguments were as follows: (1) that on a proper construction of the Immigration Act 1971 none of the appellants was on the facts an illegal entrant within the meaning of section 33(1); (2) that even if the appellants were illegal entrants they were also refugees and therefore could not be removed from the United Kingdom if in the case of the individual appellant the only country to which he could be sent was a country where he feared persecution; (3) that in any event by deciding to remove the appellants as illegal entrants rather than to deport them under section 3(5)(a) of the Act of 1971 the authorities had misdirected themselves by failing to take relevant matters into consideration. I shall consider these arguments in turn.

Mr Sullivan accepted that if one applied the civil standard of proof (see Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 124) there was plain evidence that each of the appellants had acted in contravention of section 26(1) of the Act of 1971. The relevant part of section 26(1) is in these terms:

"A person shall be guilty of an offence . . . (c) if on any [examination under Schedule 2] . . . he makes or causes to be made to an immigration officer . . . a return, statement or representation which he knows to be false or does not believe to be true; . . ."

Mr Sullivan was not prepared to concede that a criminal offence had been committed but he did not dispute that for the purpose of satisfying the civil standard of proof the appellants' own admissions established that there had been contraventions.

He submitted, however, that such contraventions did not have the effect of making the appellants "illegal entrants" within the meaning of section 33(1)

of the Act of 1971.

Section 33(1), which is the interpretation section, contains the following relevant definition:

"'Illegal entrant' means a person unlawfully entering or seeking to enter in breach . . . of the immigration laws, and includes also a person who has so entered; . . ."

According to this definition, submitted Mr Sullivan, a person does not become an illegal entrant unless the misrepresentation of which he was guilty was a misrepresentation of a material fact and a fact will only be material for this purpose if it was decisive in the sense that if the truth had been known to the immigration officer he would have been bound to have refused leave or enter or would in all probability have refused leave to enter. In other words, if the misrepresentation were not of a material or decisive fact the entry would not have been "caused" by the misrepresentation.

Mr Sullivan sought to find support for this submission in the judgment of Lord Denning MR in Reg v Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 WLR 405, 408, where he said:

"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."

Mr Sullivan also referred the court to a passage in the speech of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 118, where he said:

"the question whether a person who has obtained leave to enter by fraud 'has entered in breach of the Act' is purely one of construction. If the fraud was a contravention of section 26(1)(c) of the Act, the provisions of which I have already quoted, and if that fraud was the effective means of obtaining leave to enter -- in other words if, but for the fraud, leave to enter would not have been granted -- then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was 'in breach of the Act.'"

In the present case, said counsel, if the appellants had sought asylum on entry the immigration officers would have been obliged to refer the matter to higher authority in accordance with paragraph 73 of the Statement of Changes in Immigration Rules (1983) (HC169) which provides:

"Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees."

It is impossible to say with certainty, continued Mr Sullivan, whether or not asylum would have been granted if it had been claimed at the outset. Moreover, though the later refusals could not be ignored, they may have been influenced by the admitted misrepresentations at the time of entry.

I find myself unable to accept this argument. It is clear that Lord Denning MR in Reg v Secretary of State for the Home Department, Ex parte Jayakody [1982] 1 WLR 405, 408, was speaking of "material facts" as meaning facts which could have adversely influenced the decision to give leave to enter on the ground claimed.

In my judgment it is impermissible to extend the concept of material facts so as to allow an intending entrant to seek leave to enter for a particular purpose on the basis of a statement of particular facts and then later, on admitting that the purpose had been misrepresented and the facts had been misstated, to contend he was not an illegal entrant because if he had told a different story and had put forward a different reason for his visit he might well have been given leave.

The question whether facts are material or decisive has to be answered in the context of the leave which was in fact given. The Act of 1971 makes this clear. Thus the appellants were seeking to enter and United Kingdom by making statements or making representations to the immigration officers which they knew to be false or did not believe to be true. The misstatements or misrepresentations were not on matters of detail but constituted versions of the appellants' intentions which were in fundamental respects at variance with the truth. The decision that these appellants were illegal entrants appears to me to be unassailable.

Mr Sullivan's second argument was to the effect that even if the appellants were illegal entrants they could not be removed as such because they were claiming asylum as refugees. Furthermore, submitted Mr Sullivan, the question whether they were refugees was a matter which could and should be investigated by the court. The power of removal depended on the proof of a negative precedent fact, namely that they were not refugees, and by analogy, though the fact to be proved was negative rather than positive, the decision in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 showed that the court had a duty to examine the factual basis on which the power to remove was alleged to be based.

Mr Sullivan referred the court to the references to "refugees" in paragraphs 16, 96 and 153 and to the references to "asylum" in paragraphs 73, 134 and 165 of the Statement of Changes in Immigration Rules (1983) (HC169). In particular he laid stress on paragraph 16, which is in these terms:

"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmd 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

He also referred to certain articles in the Convention and Protocol relating to the Status of Refugees (1951) ("the Convention") and to the Handbook on Procedures and Criteria for Determining Refugee Status which was published in Geneva in 1979 under the aegis of the Office of the United Nations High Commission for Refugees ("the 1979 handbook"). Article 33 of the Convention provides:

"1. No contracting state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

I should also set out certain passages from the 1979 handbook:

"28. A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee. . . . 189. It has been seen that the 1951 Convention and the 1967 Protocol define who is a refugee for the purposes of these instruments. It is obvious that, to enable states parties to the Convention and to the Protocol to implement their provisions, refugees have to be identified. Such identification, ie the determination of refugee status, although mentioned in the 1951 Convention (cf article 9), is not specifically regulated. In particular, the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status. It is therefore left to each contracting state to establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure. 190. It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. . . . His application should therefore be examined within the framework of specially established procedures by qualified pesonnel having the necessary knowledge and experience, and an understanding of an applicant's particular difficulties and needs. 191. Due to the fact that the matter is not specifically regulated by the 1951 Convention, procedures . . . vary considerably. In a number of countries, refugee status is determined under formal procedures specifically established for this purpose. In other countries, the question of refugee status is considered within the framework of general procedures for the admission of aliens. In yet other countries, refugee status is determined under informal arrangements, or ad hoc for specific purposes, such as the issuance of travel documents. 192. In view of this situation and of the unlikelihood that all states . . . could establish identical procedures, the executive committee of the High Commissioner's programme . . . recommended that procedures should satisfy certain basic requirements. These basic requirements, which reflect the special situation of the applicant for refugee status . . . and the following: (i) The competent official . . . to whom the applicant addresses himself at the border or in the territory of a contracting state should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority. . . . (vi) If the applicant is not recognised, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system."

Basing himself on these and other passages in the documents to which he referred us, Mr Sullivan developed an argument on these lines: (a) the Statement of Changes in Immigration Rules (1983) (HC169) constitute a statement of the practice to be followed; (b) paragraph 16 of the rules (HC169) shows that it would be a breach of the rules to return someone who is a refugee in breach of the Convention; (c) a person who has a fear for his safety in his own country has the status of refugee and has that status before it has been formally determined by any court or other authority: see paragraph 28 of the 1979 handbook; (d) if the Secretary of State decides to refuse a claim for asylum and seeks to exercise a power to return a person as a non-refugee the status of that person can and should be investigated by a court: cf Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74; (e) there is nothing in paragraph 73 of the immigration rules (HC169) (which I have already set out above) which ousts the jurisdiction of the court.

In my judgment, however, Mr Sullivan's argument is based on a misconception of what was decided in the Khawaja case. In that case the Secretary of State was claiming jurisdiction to exercise a power under paragraph 9 of Schedule 2 to the Act of 1971 to remove someone as an illegal entrant. The court therefore had a duty to investigate the basis on which the jurisdiction was claimed. In the present case, however, as Mr Laws pointed out, the matter in issue is the right to refuse asylum. By section 4(1) of the Act of 1971 the power to give or refuse leave to enter the United Kingdom is to be exercised by immigration officers and the power to give leave to remain or to vary any leave which has been granted is to be exercised by the Secretary of State.

By paragraph 16 of the immigration rules (HC169) full account has to be taken by the Secretary of State and the immigration officers of the provisions of the Convention. But I can see no basis on which to found any jurisdiction in the High Court to determine the question whether a person is a refugee or should be granted asylum.

There are no statutory definitions or statutory guidelines for the court to interpret or apply. It seems to me to be clear, as Mr Laws submitted, that Parliament has decided that all questions of leave to enter should be determined by an immigration officer or by the Secretary of State as the case may be.

The court has no role to play and there is no precedent fact for the court to determine. Furthermore, the investigation of refugee status and the question whether an individual should be afforded asylum might involve the consideration of foreign policy and the assessment of regimes in foreign countries and other similar matters with which a court of law would be ill equipped to deal.

Though I can well understand the appellants' anxieties that they may be sent to countries which they regard as unfriendly to them, I am unable to find any way in which this court can properly intervene to control or influence the decisions of the Secretary of State.

Without intending any disrespect to the helpful argument of Mr Sullivan on this point I was not surprised to learn that in other cases a concession has been made that questions as to refugee status and the right to asylum cannot be determined by the High Court.

I come finally to Mr Sullivan's third argument. He pointed out that if it had been decided to deport the appellants rather than to direct their removal under paragraph 9 of Schedule 2 of the Act of 1971, the appellants would have had a right of appeal. Moreover by electing to remove the appellants rather than to deport them the immigration authorities had misdirected themselves by failing to take into account or by misconstruing the terms of the Convention and the guidelines given in the 1979 handbook.

Here again, as it seems to me, Mr Sullivan sought to place undue weight on paragraph 16 of the immigration rules (HC169). This paragraph enjoins the immigration authorities to take account of the Convention. In addition I consider that he overstated the effect of the 1979 handbook. The handbook recognises that the practice to be adopted in various states will vary and the recommendations are clearly drafted in broad terms to cover many different situations and many different legal systems. I can see no basis on which the court could interfere, either on the ground of a misdirection or on the basis of a breach of natural justice.

Moreover, it is to be observed that in the cases of Mr Bugdaycay and Mr Santis the question of asylum was further considered at the request in each case of a Member of Parliament.

Accordingly, for the reasons which I have endeavoured to outline, I would dismiss these three appeals.

Judgment Two:

BALCOMBE LJ: I agree.

Judgment Three:

OLIVER LJ: I also agree.

DISPOSITION:

Appeals dismissed. No order as to costs. Legal aid taxation of appellants' costs. Leave to appeal refused.

SOLICITORS:

Winstanley-Burgess; Treasury Solicitor