R v. Secretary of State for the Home Department, Ex parte Dhirubhai Gordhanbhai Patel

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte DHIRUBHAI GORDHANBHAI PATEL

Court of Appeal (Civil Division)

[1986] Imm AR 515

Hearing Date: 17 October 1986

17 October 1986

Index Terms:

Deception -- whether the silent presentation of a passport known to contain false information amounts to deception such as to make a person an illegal entrant. Immigration Act 1971 ss 26(1)(c), 16(1)(d), 33.

Evidence -- applicant tendered for cross-examination -- opportunity to cross-examine on affidavit's declined -- whether Court should then have accepted applicant's unchallenged affidavit evidence.

Practice and Procedure -- whether during the hearing of an appeal the Secretary of State was entitled to switch the basis of his case that the applicant was an illegal entrant from s 26(1)(d) to s 26(1)(c) of the Immigration Act 1971.

Practice and Procedure -- whether Secretary of State is entitled to elect to treat a person as an illeagl entrant and remove him with very limited rights of appeal where on the facts he could equally have sought to deport him in accordance with s 3(5)(b) of the Immigration Act 1971, which would give the individual a right of appeal while in the United Kingdom. Whether if the papers are silent on the issue, it is to be presumed that the Secretary of State has properly considered the alternatives open to him. Immigration Act 1971 s 3(5)(b), Schedule 2 paras 12(2), 13(2), 16.

Held:

The appellant claimed to be the son of Gordhanbhai and Maniben Patel. As their son he was admitted to the United Kingdom. The Secretary of State concluded subsequently that he was not their son. The appellant's birth certificate and application form for a passport were alleged to contain false information. He was alleged to have made false statements when extending his passport. He was also alleged, when he presented his passport on admission tot the United Kingdom to have made, by its presentation, a representation as to his status which he knew to be false. On application for judicial review, the Court decided the case entirely on affidavit evidence. Counsel for the Secretary of State declined the offer by counsel for the applicant, to cross-examine the applicant on that evidence. In the course of the hearing the Secretary of State, with leave, extended the basis of the case from an offence under s 26(1)(d) to one also under s 26(1)(c); the factual basis of the offence was unaltered. Before the Court of Appeal counsel submitted that the unchallenged affidavit evidence of the applicant should have been accepted bythe Court. The Court was wrong to permit the Secretary of State, at that late stage, to extend the basis of the case. He also asserted, following ex parte Addo, that the silent presentation of a passport could not amount to misrepresentation such as to make the appellant an illegal entrant. He also challenged the propriety of the Secretary of State electing to treat the appellant as an illegal entrant when, on the facts if proved, he could equally have chosen to initiate deportation proceedings against the appellant pursuant to s 3(5)(b) of the 1971 Act. The papers did not show that the alternatives had been considered: by treating the appellant as an illegal entrant, the Secretary of State cut down his effective opportunities to appeal. Held: 1. The silent presentation of a passport known to contain false information was deception such as to justify treating the appellant as an illegal entrant, Ex parte Addo not approved. 2. The Court had in the circumstances, been justified in deciding the case on affidavit evidence. For the approach the court had given full and good reasons. It did not follow that the appellant's affidavit evidence should be accepted merely because it had not been challenged by way of cross-examination. 3. The Court had not been wrong in allowing a late extension to the basis of the case to include offences under s 26(1)(c) of the Act. The appellant had suffered no detriment. The factual basis had remained the same: the appellant had been fully aware of the material facts. At best counsel should have been allowed a short adjournment, but in the event he had not sought one. 4. The Secretary of State had to be presumed to know the provisions of the Immigration Act 1971. That the papers were silent on his election did not mean that it could be concluded that he had not considered all the alternatives open to him. Following Khawaja to proceed against the appellant under s 3(5)(b) might not have been appropriate.

Cases referred to in the Judgment:

R v Dodge [1972] 1 QB 416; [1971] 2 All ER 153. R v Secretary of State for the Home Department ex parte Hussain [1978] 1 WLR 700; [1978] 2 All ER 423. Zamir v Secretary of State for the Home Department [1980] AC 930; [1979-80] Imm AR 203. Khawaja v Secretary of State for the Home Department [1982] Imm AR 139. Ahmad v Secretary of State for the Home Department (unreported, CA 27 May 1983) R v Secretary of State for the Home Department ex parte Kwame Addo (unreported, QBD 17 April 1985) R v Secretary of State for the Home Department ex parte Dhirubhai Gordhanbhai Patel, QBD [1986] Imm AR 208.

Counsel:

KS Nathan for the appellant GR Sankey for the respondent PANEL: O'Connor, Glidewell, Ralph Gibson LJJ

Judgment One:

GLIDEWELL LJ. This is an appeal against a decision of Webster J given on 26 March 19867 refusing to issue an order of habeas corpus directed to the Secretary of State for the Home Department to show cause why the appellant should not be released immediately and an order of certiotari to quash the decision of an immigration officer dated 10 August 1983 to detain the appellant as an illegal entrant to the United Kingdom. The appellant was released on conditional bail by the late Frobes J on 16 April 1984 and has so remained since that date pending the final determination of these proceedings. The issues that arise in relation to the first two orders sought are substantially the same. The matter really becomes a question of certiorari. The essential factual issue which the immigration officer had to decide and which Webster J had to consider was, "whose son is the appellant?" There is no doubt who he is -- sometimes there is doubt in cases of this sort -- but there is no doubt here. He is Dhirubhai Gordhanbhai Patel. There is equally no doubt that he was born on 30 November 1962. He entered the United Kingdom through Heathrow Airport on 24 January 1983 when he was aged twenty. He had in his possession a passport originally issued to him on 2 August 1976 and renewed on 2 August 1981 by the British Deputy High Commissioner in Bombay. That passport showed him to be a British Subject, a citizen of the United Kingdom and Colonies. Since the coming into force of the British Nationality Act 1981 that citizenship has now suffered a change of name, and if he is entitled to it he is now a British Overseas Citizen. The passport contained in an entry certificate granted a few days before he arrived. On arrival at immigration control at Heathrow the appellant was given leave to enter the United Kingdom and to remain for an indefinite period. He claims to be, and the passport and the entry certificate were issued to him on the basis that he is, the son of the late Gordhanbhai Somabhai Patel and his wife Maniben Gordhanbhai Somabhai Patel whom I will call Somabhai and Maiben. If he is their son the passport and the entry certificate were issued to him validly and he is not an illegal entrant. The Home Secretary claims that the appellant is the son of Gordhanbhai Chaturbhai Patel and Madhuben Gordhanbhai Chaturbhai Patel whom I shall call Chaturbhai and Madhuben. They are Indian citizens resident in India. If that is correct the appellant was not entitled to the passport or the entry certificate and he is an illegal entrant. The evidence which was before the immigration officer was put before the judge was as follows. Somabhai was a resident of Uganda and thus was a British subject and a citizen of the United Kingdom and Colonies. In 1941 Maniben, who was then in her teens, went to Uganda to marry Somabhai, and she acquired the same citizenship. While they were in Uganda they had three children, two sons and one called Bipinchandra, who is married to a lady called Bharti, and Rameshbahai, who is married to Miraben, and a daughter called Indiraben. Invariably it seems that these people had the ultimate syllable left of their names and they are familiarly called Ramesh, Indira and so on. In 1957 the parents and the three children returned to India. Maniben then bore another son, Kamlesh, who was born in 1964, and it seems that she had one or two more children, who died. The appellant says that he was born to her in 1961 and that Kemlesh is thus his younger brother. Somabhai died in 1977. Although they had left Uganda Maniben and her children were entitled to the benefit of the special voucher scheme which was introduced in 1968 by the United Kingdom government to assist British subjects who were expelled from East African states. By taking advantage of this scheme Maniben and all her children, including the appellant Dhirubhai, arrived in the United Kingdom on various dates in and between 1981 and early 1983, and they have all been here since. When the appellant's passport was first issued in 1976 he was only thirteen years old. The Home Secretary does not suggest that at that state he personally knew that any deception was being practised on his behalf. As part of the process of obtaining that passport Maniben in March 1976 swore an affidavit that Dhirubhai was her child and produced a marriage certificate on which he was listed as one of her children. In 1981, however, by the time the appellant was eighteen, he himself applied for a passport extension, since the passport originally was for five years, on a form which showed that Somabhai was his father. He also later made an application for a special voucher after the extension of the passport had been granted, and that second application also showed Somabhai as his father. Later, however, after Maniben had been granted her special voucher, he substituted for that application in November 1982 an application for entry clearance as the defendant son of Maniben. That application was granted earlier in January 1983 and it was that that led to the entry certificate being stamped in his passport. The documents before the judge and before us do not contain the form of application for the entry clearance, but it is an inevitable inference on the evidence I have already recited that it also said that the appellant was the son of Somabhai. So far the documents all support the appellant's contention. When the appellant arrived in the United Kingdom and was granted leave to enter he did not go to stay with any of the Maniben's family, all of whom as I have said were by that time resident in the United Kingdom. Instead he went to stay with the family of a young man called Jayanti Patel who is the son of Suryakant Patel, who had also come here under the Ugandan voucher scheme. He says, and Jayanti says, and there is no reason to disbelieve it, that Jayanti and the appellant were at school together in the same village in India. After he had stayed with Jayanti and his parents for a short time the appellant moved to live at 183 Lady Margaret Road, Southall, which is the home of Ratilal, who is the brother of Suryakant. The Home Office says that both these gentleman are the appellant's real uncles. Soon after the appellant arrived in the United Kingdom both the Home Office and the High Commission in Bombay were informed that he was not the son of Maniben. Indeed they received a number of messages denouncing him and saying that he was not Maniben's son. The original information did not come from Maniben's family. A Mr Slade was given the task of investigating these allegations. He went to see both Maniben and Bharti, one of the daughter-in-laws and on 29 April 1983 they both said to him that this appeallant was not Maniben's son and they had no interest in him. They were living in Neasden in North London. In June 1983 the appellant was interviewed and maintained that he was the son of Maniben. It is only right to say that at all times he has maintained that he is the son of Maniben and Somabhai and, when questions about the details of the family, he has been able to recite the dates of birth and so on of Maniben's family with great fluency. So it is right to remind oneself from the start that he has been entirely consistent in what he has said, which is a factor to be taken into accounting deciding whether what he has said is true or not. Going back to the interview with the appellant in June 1983, as a result of the appellant's insistence that he was Maniben's son Mr Slade went with him to see Maniben again. On this occasion they saw Maniben and her daughter Indira, and they both then said that the appellant was Maniben's son. Indeed Maniben denied that she had ever said anything to the contrary earlier. At that stage, Mr Slade, having received these contradictory stories from the alleged mother, recommended to his superiors that no further action should be taken. However, he and the police immediately started receiving yet further allegations by way of 'phone calls repeating that the appellant was not the son of Maniben. Invariably whoever telephoned called himself "Mr Patel", which in the circumstances is not a clear identification. On 10 August 1983 Mr Slade saw Maniben again. He reported as follows. Maniben gave the account I have already given about going to Uganda and the birth of the children and then returning to India, and she said that when they came back to India she and Somabhai went to live in a village called Kanisha in which there lived also Chaturbhai and Madhuben. Chaturbhai and Madhuben come to know of Maniben's Ugandan-Asian status and the possible advantages that had in relation to entry to the United Kingdom. She told Mr Slade that they put pressure on her to, as it were, adopt Dhirubhai. She said that she was afraid of Madhuben and moreover her eldest son Ramesh was at that time working or Madhuben and Chaturbhai and so she eventually gave in to the threats and made the application for a passport for this appellant as if he were her son in April 1976. Ramesh the eldest son, the employee, helped her, according to her, and indeed put the details on the application form. She said that when she received her voucher to come to the United Kingdom she was again put under pressure to allow to come in as her dependant. She acceded to that threat. However, she had nothing to do with him when he arrived. In fact his arrival here was sponsored by his real uncle Ratilal with whom, as I have said, the appellant went to live shortly after his arrival. That story was confirmed by both the daughter-in-laws (Mr Salde took statements from all three ladies) and also by another former resident of Kanisha called Balhubhai, who may not have been relative because his other name was Somabhai. The appellant was arrested and shown these statements. He denied that they were true. In September Kamlesh and Bipin were seen. They made statements saying that the appellant wa not their brother. Ramesh who of coruse, if what his mother had said was true, had been involved in the fraudulent obtaining of the passport, was also seen. He admitted that he had indeed helpted to obtain a passport for Dhirubhai, who was not his brother. Finally, in the autumn of 1984, a member of the staff of the High Commissioner's office in Bombay, a Mr Lovatt, went to Kanisha. He spoke to Madhuben and Chaturbhai and some of the other villagers. I will come back later to the report which he made because it forms part of the submissions which Mr Nathan made to us. I turn to the law. In Section 33 of the Immigration Act 1971 an illegal entrant is defined as:

"a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered."

Section 26 of the 1971 Act creates a number of offences which include under Section 26(1)(c): "if on any such circumstances" (ie examination by an immigration officer) "or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a . . . statement or representation which he knows to be false or does not believe to be true". Section 26(1)(d) so far as is material says:

"if, without lawful authority, he . . . uses for the purposes of this Act, or has in his possession for such use, any passport, certificate, of patriality, entry clearance, work permit or other document which he knows or has reasonable cause to believe is false."

In his speech in R v Home Secretary, ex parte Khawaja [1984] AC 74, Lord Bridge of Harwick said at page 118D: "My Lords, in my opinion the question whether a person, who has obtained leave to enter by fraud 'has entered of 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 effect 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'. It is on this simple ground and subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants. I would add, however, that if I had reached an opposite conclusion, the issue turning at the very least on an arguable point of construction, I should not have thought it appropriate, on this point, to depart from Reg v Secretary of State for the Home Department, ex parte Zamir". Lord Fraser of Tulleybelton and Lord Scarman specifically agreed with that passage in Lord Bridge's speech. It follows that if the appellant is not the son of Maniben and Somabhai, and he must know whether he is or not, he obtained the renewal of his passport, the entry certificate and the leave to enter on 24 January 1983 by fraudulent statements or representations which he knew to be false or did not believe to be true. In those circumstances he is in breach of Section 26(1)(c) of the 1971 Act and is an illegal entrant. What then are the Home Secretary's powers to deal with an illegal entrant? They are contained in schedule 2 of the Act which is applied by Section 4(2). The appellant was detained under Paragraph 16 of Schedule 2. Paragraphs 16(2) provides:

"A person in respect of whom directions may be given under any of paragraph 8 to 14 above may be detained under the authority of an immigration oficer pending the giving of directions and pending his removal in pursuance of any directions given."

Going back to paragraphs 8 to 14, the relevant paragraph in this case is paragraph, which 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 as authorised by paragraph 8(1)."

They are directions for removal by ship or aircraft. Prima facie this appellant has been given leave to enter, but a series of authorities starting in 1976 and including notably R v Home Secretary, ex parte Hussain [1978] 1 WLR 700, a decision of this court, have held that a leave to enter obtained by fraudulent false representations is vitiated. Ex parte Hussain was followed and approved by the House of Lords in R v Home Secretary ex parte Zamir [1980] AC 390. In another respect, that is to say in deciding the proper function of the court when considering an application for habeas corpus or judicial review, by a person who is alleged to be, but claims not to be, an illegal entrant, the House of Lords in ex parte Khawaja departed from its earlier decision in ex parte Zamir. In relation, however, to the power of an immigration officer to detain an illegal entrant and direct his removal from the United Kingdom, their Lordships in ex parte Khawaja affirmed their decision in ex parte Zamir. At page 98 of his speech in ex parte Khawaja, Lord Wilberforce, having said that there were two points in issue, continued:

"The first is the fundamental question whether those who obtain entry by fraud or deception may, as a matter of law, viz the construction of the Immigrants Act 1971, be dealt with as illegal entrants at all or whether, as the appellant contend, the Act only treated as illegal entrants persons who entered clandestinely, for example by small boats on the beaches. This point which had never before been suggested in any of the many deception cases until it was raised in the oral argument of the appellant in Zamir's case, was, nevertheless there fully considered. This House, endorsing the law on which the courts had consistently acted at least since 1976, decided against the appellant's argument, and held that fraud or deception vitiated permission to enter so that the person concerned could be treated as an illegal entrant. I adhere to the opinion I expressed in Zamir's case."

Lord Bridge at page 116 and Lord Templeman at page 127 expressly concurred with that expression by Lord Wilberforce. What right of appeal does a person alleged to be an illegal entrant have against the allegation? Section 16 of this Act gives a right of appeal against a direction to remove him, but it acknowledged that it is of limited value because it may only be exercised after the appellant has left the United Kingdom. Thus in a case such as the present one he would be seeking to exercise his right of appeal without himself being able to give first-hand evidence in this country when most of the witnesses against him would be able to give first-hand evidence, albeit through an interpreter, in this country. Section 13 of the Act grants to an illegal entrant who is alleged to be so at the time of entry and is in possession of an entry clearance a right of appeal to an adjudicator which he may exercise in this country. In other words, if when a person is seeking to enter the United Kingdom and has an entry clearance in his passport, the immigration officer has reason to believe that it may have been fraudulently obtained, he may decide that the person is an illegal entrant, the definition including somebody who is trying to enter, and such a person, unless he decides to accept the decision and go back home, then has a right of appeal while he remains in the United Kingdom. But that right only arises when leave to enter the United Kingdom is refused. When a person who has been granted leave which is vitiated by his previous deception enters the United Kingdom and remains here until he is discovered, he has no right of appeal under Section 13. I join those judges who have in the past expressed regret that the law provides no such right. In my view an experienced adjudicator is by far the best qualified tribunal to decide the difficult issue of fact as to whether or not the immigrant has exercised deception and whether he is who he purports to be. The difficulties which can rise when the question is brought before the High Court in its supervisory role by way of an application for habeas corpus or judicial review are illustrated by the present case. However, having expressed my own view, there is no doubt in my mind that there is in law at present no such right of appeal for a person in the position of this appellant. There is also a right, subject to exceptions, under Section 15, of the Act to appeal against a decision of the Home Secretary to deport a person. Such an appeal may also be made while the appellant is in this country. I mention this because it is the substance of one of Mr Nathan's arguments. Before I turn to those, I remind myself what the function of the High Court is in a matter of this sort. Returning to ex parte Khawaja, Lord Wilberforce said at p 105:

"The court's investigation of the facts is of a supervisory character and not by way of appeal (it should not be forgotton that a right of appeal as to the facts exists under section 16 of the Act of 1971 even though Parliament has thought fit to impose conditions upon its exercise). It should appraise the quality of the evidence and decide whether that justifies the conclusion reached -- eg whether it justifies a conclusion that the applicant obtained permission to entry by fraud or deceit. An allegation that he has done so being of a serious character and involving issues of personal liberty, requires a corresponding degree of satisfaction as to the evidence. If the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or itself receive further evidence. It should quash the detention order where the evidence was not such as the authorities should be relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity."

In Khawaja all the members of the Committee concurred in that view. I would also in this respect gratefully adopt some words of May LJ in an unreported decision of this court given on 27 May 1983, Ahmad v Secretary of State for the Home Department. Having referred to the decision of Khawaja he described the role of the courts in these words at page 8F of the transcript: "the role of the Court in these cases is to consider all the available material and to decide for itself whether it has been satisfied by the Secretary of State that the applicant for habeas corpus or certiorari is an illegal entrant for the reasons to which I have referred. As I have ssaid, the onus of proof in these cases is now firmly on the Secretary of State. Finally, the standard of proof required before the Court can come to the conclusion that the applicant has practised deceit is that of the balance of probabilities, the degree of probability being proportionate to the nature of gravity of the issue. As these cases involve grave issues of personal liberty, the Court should not be satisfied without anything less than probability in the high degree: the inherent difficulties of discovering and provided the true facts in many immigration cases affords no valid ground for lowering or relaxing the standard of proof required -- per Lord Scarman . . . and Lord Bridge of Harwich in Khawaja". I come to Mr Nathan's submissions. In logical order they are as follows. First, in the court below before Webster J he tendered his client for cross-examination but counsel for the Home Secretary did not accept the offer. Therefore what the appellant said in his affidavit was unchallenged where it could have been challenged and thus should have been accepted. The evidence before the learned judge comprised three affidavits from the appellant asserting that he is the son of Maniben and Somabhai and not an illegal entrant, together with a number of relevant documents exhibited to them, and an afidvait sworn by Jayanti Suryakant confirming that the appellant is the son of Maniben. The only affidavit sworn on behalf of the Home Secretary is that of Mrs Williams, a senior executive officer in the Home Office. She exhibits to her affidavits reports by Mr Slade, the investigating officer, and the various statements by those to whom I have already referred, especially Maniben and her family. Mrs william's evidence therefore is strictly third-hand, not even for the most part second-hand. Webster J devoted a substantial part of his judgment to consideration of this point raised by Mr Nathan. He concluded as follows (at page 5 of the transcript of his judgment):

"Mr Symons on behalf of the Secretary of State declined the invitation to cross-examine the applicant, rightly in my view, Mr Nathan did not apply to cross-examine Norma Williams and, even if he had, I could not have been much assisted by her evidence, but on Mr Slade's records of his interviews and on the witness statements, all of which are exhibited to her affidavit. Moreover, applicant, had he been cross-examined, would have had to have given evidence through an interpreter; and even if the makers of those witness statements had sworn affidavits and had been cross-examined on them, it is common ground that most, if not all, of them would also have had to have given evidence through an interpreter. I think that I would probably gained very little assistance, possibly none, from such evidence. I would have derived still less assistance from hearing only the evidence of the applicant."

He then went on to explain why it was that he took the view that, if either the applicant himself or indeed any of the Maniben contingent, if I may so describe them had been called to be cross-examined on their affidavits, he would not have derived much assistance. He did so by reference to two expressions of views in articles about this which conclude in effect that evidence given through an interpreter rarely enables a judge to decide whether or not the witness is telling the truth or certainly creates far greater difficulties in that exercise than if the evidence is given in English, because the judge has little ability to tell from the method of expression and the way in which the witness answers the questions or indeed from his facial expressions whether he is or is not telling the truth. I remind myself that Webster J was not dealing with a trial at first instance. He was considering the evidence on which the immigration offer had based his decision in order to decide whether that evidence was on the face of it sufficient to decide on the balance of probabilities, but to the high standard required, whether the appellant was an illegal entrant. The judge's refusal to acccept the appellant's assertion in affidavit simply because he was not cross-examined was in my view justified. I agree with the judge's approach to this question and I therefore reject this complaint. I add that the learned judge at three points in his judgment reminded himself of the nature of the exercise in which he was engaged and of the high standard of proof which was required if he was to refuse the application. Mr Nathan's second submission is that at the hearing before Webster J the Home Office changed their ground and should not have been allowed to do so. Neither the detention order dated 10 August 1983 nor a later letter from the responsible minister, Mr Waddington, of 12 March 1984 to a member of the House of Lords who had made enquiries about this case, specified the provisions of Section 26 which the appellant was alleged to have contravened. However, Mr Waddington's letter did set out the allegations against him in some detail. In her affidavit sworn on 13 June 1984 Mrs Williams concluded by saying:

"It is considered the applicant obtained entry to the United Kingdom on 24 January 1983 having practised deception as to his true identity to secure admission and being in possession of a British passport to which he had no entitlement, the same having been obtained by use of forged documents constituting an offence under Section 26(1)(d) of the Immigration Act 1971."

It may well be, if the Home Office allegations are correct, that in the past various documents were forged, for instance the birth certificate and the marriage certificate which were produced by Ramesh and Maniben back in 1976, but those are not offences committed by this appellant. Was the passport itself a false document? The Home office were arguing that it was. The learned Judge said at page 15:

"If the word 'false' in this context has the same meaning as it has for the purposes of the Forgery Act 1913 or the Forgery and Counterfeiting Act 1981, neither the passport of itself, not the passport containing the entry clearance, was a false document. It was not false within the meaning of that word in section 9(1) of the 1981 Act, nor does the document 'tell a lie about itself': see R v Dodge [1972] 1 QB 416 at page 419 per Phillimore LJ giving the judgment of the Court of Appeal. No authority was cited to me which enables me to put any less restricted meaning on the word and accordingly I conclude that neither the passport of itself nor the passport containing the entry clearance was a false document and that therefore no offence was committed under section 26(1)(d)."

He then went on, however, to consider the alternative statement made by Mr Symons that if there was not an offence under section 26(1)(d) there was clearly an offence under section 26(1)(c). I find it necessary to decide whether the judge was right in holding that the passport was not a false document because I am satisfied that, if the facts alleged against this appellant are proved, an offence under section 26(1)(c) was clearly made out. The question then arises whether the judge should have allowed the Home Office, despite the fact that Mrs Williams had not referred to section 26(1)(c) in her affidavit, to rely upon that. I am quite confident that he was right. All the relevant facts are set out in the documents. The essence of the allegation against this appellant had been made entirely clear, not merely by Mr Slade but in the letter from Mr Waddington to which I have referred. He was not appearing on an indictment, and I imagine that if he had been an application to amend would have been sought and granted without much difficulty. If the facts as set out showed an offence under section 26(1)(c) the Home Office were in my view entirely entitled to rely upon the commission of such an offence. At most, if Mr Nathan said that he would put in difficulty by the change of ground by the Home Office, that might have merited an adjournment for a short time to enable him to consider the position. As I understand it he did not ask for that. I have already said that in my view if the facts alleged are proved an offence under section 261(c) was clearly made out. In saying this, I anticipated another point made by Mr Nathan to which I should refer briefly. That is that he questioned whether the appellant had commited an offence under section 26(1)(c), at least at the stage at which he confronted the immigration officer at Heathrow. Mr Nathan submits that all the evidence shows that what the appellant did was to present his passport containing the entry certificate, even if the passport and entry certificate were fraudulently obtained. Was this a false representation contrary to section 26(1)(c), he asks rhetorically. In this respect Mr Nathan refers us to a judgment of Hodgson J in the case of R v Secretary of State for the Home Department, ex parte Addo, another unreported case decided on 17 April 1985. IN that case the applicant had, by fraudulent misrepresentation when he entered the United Kingdom, obtained leave to enter for an indefinite period which was stamped in his passport. After several years here he went to Ghana for a short visit. On his return from Ghana to the United Kingdom he presented his passport. All he was asked was how he had been in the United Kingdom. He answered that question truthfully. Hodgson J said at page 8 of his judgment:

"Applying section to the facts of this case, the short question is whether by merely handing his passport to the immigration officer the applicant made a false representation. It is difficult to see how it can be said that he did. The leave to enter was not a nullity, and the immigration authorities had taken no steps to 'seek to secure his summary removal under Schedule 2'. By providing elaborately for the punishment of the use of false documents in section 21(1)(d), Parliament seems to have accepted the difficulties involved in categorising mere conduct as a representation. But even if the presentation of the passport and nothing more can be a representation, it is difficult to see how, in this case, it was a false one. It said nothing about the passport itself which was not accurate."

In the present case Webster J said at page 18 that he did not agree with Hodgson J. He said:

"I, of course, acknowledge that the case of Khawaja decided that there is no positive duty of candour approximating to a requirement of utmost good faith on an immigrant to disclose all material facts in relation to an application to enter, but that case also decided that silence as to material facts is capable of amounting to deception so as to render a person who had gained leave to enter by such deception as illegal entrant. I acknowledge also that for a representation to be false, within the meaning of the subsection it has to be a representation of present, not of a previous fact. But in my view the applicant when he entered the United Kingdom in the present case, by presenting his passport, with its entry clearance to the immigration officer impliedly stated, by that conduct, that 'I believe that I am entitled to present to you this passport which I believe has not been fraudulently obtained and which contains an entry clearance which I believe has not been fraudulently obtained'. Expressed more colloquially, the representation is 'This is my passport on which I rely in seeking to gain entry: there's nothing wrong with it, so far as I know'. Such a statement or representation, if to be implied, was false to the applicant's knowledge and in my judgment on entering the United Kingdom in those circumstances he was guilty of an offence under section 26(1)(c) of the Act."

I respectfully agree both with the reasoning of the learned judge and with his conclusion on that aspect of the matter. That brings me to what is really the main issue; was the evidence before the Immigration Officer sufficient to satisfy the heavy burden of proof on the Home Office to justify their conclusion that this appellant is an illegal entrant? As I have already said, Webster J three times directed himself as to the burden which had to be satisfied. At page 12 he said: "The applicant's case can, I hope fairly, be summarised as follows. Almost all the documents establish that he is the son of Gordhanbhai Somabhai Patel and Maniben. I say 'almost all' because, as will be seen, he cannot make that contention in relation to the declaration of sponsorship made by Suryakant Patel on 23 December 1982. The applicant swears on oath that he is the son of Maniben and the Department's evidence shows that he has persisted in that assertion, even when challenged and shown evidence inconsistent with it, on every occasion on which he has been asked about it. Jayanti Patel has sworn an affidavit to the same effect. Finally, three of the witnesses upon whom the Department relies have at one time said that the applicant is Maniben's son although they later retracted those statements". So he reminded himself of every part of the evidence in favour of the appellant. He then summarised the evidence for the Home Office, and he concluded that:

"there are so many witnesses who support the Secretary of State's case that I have no hesitation in concluding, despite the fact that the evidence of each of those witnesses taken separately is of little weight, that weighing the evidence as a whole the Secretary of State has established, to that high degree of probability, that the applicant is not the son of Maniben Patel. I might have had more difficulty in arriving a that conclusion if anyone had been able to suggest a motive for so many witnesses (albeit most if not all of them of the same family) telling the same untrue story. But the only suggestion made, by the applicant in his affidavit, is that he did not get on well with Maniben."

What is wrong with that conclusion. In my judgment it is one to which the learned judge was clearly entitled to come and one with which for my part I would agree. I agree with the point which Webster J made that the appellant gave no satisfactory explanation as to why Maniben and her sons and daughters should denounce him. There is another point that impresses me which adds to that, which is, "Why, if the appellant is the son of Maniben, did he not join her and her family when he arrived in the United Kingdom?" He says that they did not have room. Perhaps they did not, but it is difficult to believe that when an eighteen-year old son, the second youngest in the family if that be true, had arrived, arrangements would not have been made fairly readily for him to live with his family (if indeed they were his family). Theexact opposite has happened. He has had virtually no contract with them. After he had been arrested and then released that perhaps is not surprising, but if he is truly Maniben's son it is suprising in my view that he should not join her when he first arrived. On this aspect of the matter Mr Nathan also made a subsidiary submission that the learned judge overlooked, or Mr Nathan says specifically declined to take into account, what he calls the "field report" that is to say the report of Mr Lovatt of his visit to the village of Kanisha in 1984. I do not propose to set out the detail of that report. If suffices to say that it contains accounts of interviews with Chaturbhai and Madhuben and conflicting versions of the story given by some other people in the village. It also contains comments by Mr Lovatt, including an expression of his own opinion. The judge may have concluded that the report was so conflicting that it was of no assistance to him, or he may have concluded that he ought not to take Mr Lovatt's conclusions into account since he was (no-one can blame him for this) doing the judge's job up to a point. In my view Mr Nathan should not validly complain about this report not being taken into account by the judge because, if it had been taken into account, if it tends one way or the other it tends to be against rather than in favour of the appellant. I can understand the judge deciding to leave out of account, and in my view no proper complaint can be made against that decision. Accordingly in my view on the major issue the judge was right to reject the submissions made on behalf of the appellant. Those were the matters which were put before Webster J but by leave Mr Nathan has added a ground of appeal which raises an issue which was not before the judge. Mr Sankey did not object and we have considered it. The Home Secretary has power to deport a person under section 3(5) of the 1971 Act if he concludes that that person's presence in the United Kingdom is not conducive to the public good. If such an order is made then as a general rule, though not in every case, the person who it is sought to deport may appeal against the deportation order under Section 15, and that right of appeal is one which can be exercised while the person remains in the United Kingdom (there are exceptions to that, but I need not trouble myself with them at the moment). It is not wholly clear to me precisely how Mr Nathan is putting his point. He recognises that it is a matter for the Home Secretary whether he does or does not make a deportation order, and he would I think accept that he cannot validly challenge the exercise of that discretion. What I believe he must be submitting is that the Home Secretary effectively had a choice of ways in which he would require this young man to leave the United Kingdom. Deportation was one. The procedure under paragraphs 9 and 16 of schedule 2 requiring him to leave was another. If the Home Secretary, having those choices, never gave any thought at all to the alternative of deportation, then I believe Mr Nathan's submission to be that his decision to adopt the one course ought to be quashed because, if there are two courses open to a decision-maker, he ought to at least give thought as to which to adopt. There seem to me to be two answers to that submission, if indeed I have correctly apprehended what it is. The first is that it really cannot be thought that either the Home Secretary or his responsible minister, Mr Waddington, is unfamiliar with the provisions of the 1971 Act. They know perfectly well the circumstances in which they can properly make a deportation order under Section 3(5) and I do not accept that silence on the matter implies that they did not give thought to the question whether this was appropriate in this, or indeed in any similar case. The second point is that that matter is really dealt with in Khawaja, because Lord Bridge said at page 117F-G:

"Those who have obtained leave to enter by fraud are frequently not exposed until after three years from their arrival. On the other hand, the power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground . . . I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry."

That I believe was probably strictly obiter, but I would respectfully adopt and follow it. In my judgment this argument also fails. Despite the various points made so valiantly by Mr Nathan, for the reason I have given I would dismiss this appeal.

Judgment Two:

RALPH GIBSON LJ. I agree. Judgment By-3: O'CONNOR LJ

Judgment Three:

O'CONNOR LJ. I also agree.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Munir & Co; Treasury Solicitor

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.