Adesina v. Secretary of State for the Home Department

ADESINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1988] Imm AR 442

Hearing Date: 12 May 1988

12 May 1988

Index Terms:

Illegal entrant -- entry by deception -- visitor who always intended to study -- whether properly treated as illegal entrant -- whether deception material. Immigration Act 1981 ss 3(1), 26(1)(c), 33(1): HC 169 paras 17, 20, 21-25.

Student -- "would-be" student -- sought and granted leave to enter as visitor -- no indication he intended to study, which was his real intenion -- whether he could rely on the "would-be" student provisions in the rules. HC 169 para 24.

Held:

Appeal from the Divisional Court. The appellant was a young Nigerian who arrived in the United Kingdom without entry clearance and sought leave to enter for two weeks as a visitor, to assist his cousin who was to receive medical care. He was given leave to enter as a visitor for a month. He then applied for variation of leave as a student. He admitted on subsequent enquiry that he had always intended to study. The Secretary of State considered him to be an illegal entrant and decided to remove him. On application for judicial review it was argued that under the provisions of paragraph 24 of HC 169 he should have been regarded as a would-be student. Counsel sought to distinguish Bugdaycay where the concealed intention was to secure settlement, from the present case in which the undisclosed intention to study involved no more than a grant of limited leave which was in essence the same as that granted to the appellant as a visitor, and his intention as to remaining in the United Kingdom was of the same kind or nature as that of any other visitor. Held: 1. Following Bugdaycay it was sufficient for the deception to be material. It was irrelevant whether, if the truth had been told, leave on some other basis might have been granted -- although on the facts of the case it was clear that leave to enter as a student would have been refused. 2. The distinction counsel sought to draw between the present case and Bugdaycay was 'a distinction without a difference which does not go to the main point of Bugdaycay'. 3. It followed that in the circumstances of the case, no reliance could be placed on the provisions of paragraph 24 of CH 19.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1982] Imm AR139: [1984] 1 AC 74. R v Secretary of State for the Home Department ex parte Awa (unreported, QBD, 11 March 1983). Bugdaycay v Secretary of State for the Home Department [1987] Imm AR 250: [1987] AC 514. R v Secretary of State for the Home Department ex parte ANA Adesina (DC) [1988] Imm AR 288.

Counsel:

A Riza for the appellant; J Laws for the respondent PANEL: Neill, Balcombe, Staughton LJJ

Judgment One:

BALCOMBE LJ: This is an appeal from the Divisional Court, consisting of Glidewell LJ and French J, who on 12 February this year refused the appellant's application for judicial review to quash the decision of the Immigration Officer made on 2 November 1986 that he was an illegal entrant. I take the facts from the judgment below in the following terms. "The applicant is a citizen of Nigeria and is now 25 years old. He arrived at Heathrow Airport on 19 August 1986. He told the immigration officer that he wished to enter the United Kingdom and stay for a period of 14 days only in order to provide assistance to his cousin who had come here for medical treatment. He said that his cousin was here for an artifical limb replacement and needed assistance, that the cousin always had his treatment in the United Kingdom and that the cousin had bought his, the applicant's airline ticket. The immigration officer checked that the cousin was havng treatment here and was satisfied that this was true. The applicant was given leave to enter the United Kingdom and to stay for one month. That leave to enter was given on the basis that he was entering as a visitor. Just before the month expired, on 17 September 1986, the Home Office received a letter from the London School of International Business which indicated that the applicant had enrolled for a graduate diploma course in international marketing. The Home Office treated that as being an application to them to consider whether to permit the applicant to remain in this country in order to pursue that course of study. Before any decision had been made on that application, in the early hours of the morning of 2 November 1986 Mr Adesina was travelling with another young man in a car which was stopped by the police for some alleged traffic offence. Both were interviewed. The police were then caused to have doubts about the immigration status of both of them. Accordingly, an immigration officer, Mr Smith, attended the police station later in the morning. He interviewed first Mr Adesina and then later the other young man. The interview included a series of questions asked by Mr Smith which he recorded as he was asking the questions. He also recorded the answers given by Mr Adesina. "I will read some of the questions and answers: '(Q) When did you come to the United Kingdom? (A) 19 August 1986. (Q) Why did you come here? (A) For study. (Q) What did you want to study? (A) Accountancy. (Q) How long did you expect this to take you? (A) Together this would take me some 4 years plus.' I break off to say that that somewhat cryptic observation is a reference to the fact that the combination of the marketing course on which he was about to embark and the accountancy course would take something over four years. The notes go on: '(Q) How much money did you bring with you? (A) @750. (Q) How did you expect to finance your studies here? (A) I am expecting money from home. The money will be sent twice a year via the central bank.' A little further on this passages occurs: '(Q) When you arrived at Heathrow the immigration officer asked you how long you would stay. What did you say? (A) I said that I would not stay longer than a period of a month. (Q) What did you say you were doing here? (A) To assist my uncle. (Q) Why did you not tell the immigration officer you wanted to study here? (A) That is what my uncle asked me to tell. (Q) Did your uncle explain why you had to say that? (A) No. (Q) Did you know that what your uncle told you to say was not accurate? (A) I considered that it was not accurate as you said.' He was asked to read through this and to alter it if he wished to do so. He indicated that he did not wish to do so. He initialled every answer and he signed the last sheet of the record of interview. In the light of those answers the immigration officer, on behalf of the Home Secretary, concluded that on entry to the United Kingdom the applicant had arrived with the intention to study and that he had made false representations in order to obtain entry and was therefore an illegal entrant. There is no dispute between counsel that there was sufficient material before the Home Secretary to justify his conclusion that on arrival the applicant did intend to study. As to the record of interview, Mr Warr, who represents the applicant, said: 'I do not challenge the accuracy of the interview. I accept that the questions and answers were accurately recorded.'" That is the end of the quotation from the judgment at first instance. The following propositions of law are relevant in this case. First, if a person obtains leave to enter the United Kingdom by means of a material deception he is an illegal entrant. I derive that proposition from the combined effect of sections 3(1), 26(1)(c) and 33(1) of the Immigration Act 1971 and the decision of the House of Lords in R v Home Secreltary, ex parte Khawaja [1984] AC 74. I will read a short passage from the speech of Lord Bridge at page 118D: "My Lords, in my opinion, 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'. 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." The second proposition of law, which is common ground, is that the onus is on the Home Secretary to prove that leave to enter has been obtained by deception. That proposition is also derived from Khawaja. The third proposition is that a person who obtains leave to enter by misrepresenting the facts is an illegal entrant if, had he told the truth, he would not have been granted leave to enter in the capacity in which leave was granted. It is irrelevant that had he told the truth he might have obtained leave to enter in some other capacity. The authority for that last propositon is the later case in the House of Lords, R v Home Secretary, ex parte Bugdaycay [1987] AC 514. Again I propose to read only a short quotation, also from the speech of Lord Bridge. At page 524D he is referring to the decision of this court in Bugdaycay in which the leading judgment was given by my Lord, Neill LJ: "After setting out the argument and the citations from authority on which this submission relies for support, Neill LJ disposed of it in the following paragraphs . . .:

'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 the 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 decisions that these appellants were illegal entrants appears to me to be unassailable.'

I cannot improve on this reasoning with which I agree and which I gratefully adopt." The relevant findings of fact in this case again I take from the judgment below at page 11 of the transcript where Glidewell LJ said this: "The issue therefore is: Has the Home Office proved, to the required standard, that the applicant lied when he said that he wished to enter for a few weeks as a visitor and was that lie the effective means of obtaining leave to enter? I have no hesitation in finding that the answer to both those questions is 'Yes'. It goes without saying that I accept implicitly the truth and accuracy of what Mr Smith says in his affidavit and of what the two other officers of the Department say in their affidavits. The record of the interview, and indeed the probablity that this applicant arrived intending to study but not having fixed up a course of study, prove conclusively, in my view, tht this was his intention." There is no appeal before us against that finding. Mr Laws, for the Home Secretary before us, submits that that finding is conclusive of the case. His propositions are simple. They are three in number. First, in reliance on the case of Bugdaycay, he submits that what the court looks at is to see whether the Home Office have shown that the deception proved is material, that is that it procured the actual leave in question. Second, that the actual leave which was here granted was entry for one month on the footing of the applicant helping a relative. And, third, that if the applicant had told the truth, he would not have been granted one month's leave on that or any other footing. Therefore, submits Mr Laws, the deception was material and that is a question of fact and now law. Mr Riza, who appears for the applicant, on the other hand submitted that the proper question was as stated in paragraph 2 of his amended grounds of appeal in the following terms: "Whether had all the facts been known to the immigration officer, was he as a matter of law or as a matter of the inevitable exercise of his discretion, bound to refuse the appellant leave to remain as a visitor?" He referred us to a number of immigration rules, to some of which I briefly refer. Paragraph 17, dealing with the question of visitors, says: "A passenger seeking entry as a visitor . . . is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him", and it goes on to deal with the question of his maintenance and accommodation. Rule 20 provides that "the immigraton officer should impose a time limit on the period of the visitor's stay" and says that "a period of six months will normally be appropriate." Paragraphs 21 to 25 deal with the question of students. I refer to paragraph 21, which provides that "A passenger seeking entry to study in the United Kingdom should be admitted . . . if he presents a current entry clearance granted for that purpose." It is common ground that the applicant here had no entry clearance certificate. Paragraph 22: "An application is to be refused an entry clearance as a student if the entry clearance officer is not satisfied that the applicant is able, and intends, to follow a full-time course of study and to leave the country on completion of it." It gives certain rules for the guidance of the entry officer in making that decision. Finally rule 24 provides: "A passenger who holds a current entry clearance, or who can satisfy the immigration officer that he fulfils the requirements of paragraphs 21-23, may be admitted for an appropriate period depending on the length of the course of study and on his means, with a condition restricting his freedom to take employment; he should be advised to apply to the Home Office before the expiry of his leave to enter for any extension of stay that may be required." Then comes a sentence upon which Mr Riza places great reliance: "A passenger who satisfies the immigration officer that he has genuine and realistic intentions of studying in the UK and that he intends to leave the country on completion of his studies but cannot satisfy the other requirements of paragraphs 21-23 may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case. Otherwise a passenger arriving without an entry clearance who is seeking entry as a student is to be refused admission." Mr Riza submitted that the applicant, the appellant before us, would have been granted short temporary leave under rule 24 if he had told the immigration officer of his true intention. In my judgment this submission must fail. It entirely ignores the facts as set out by the immigration officer in his affidavit and as referred to by the judge below at page 11 of the transcript (page 16 of the bundle) where he quoted this passage from the immigration officer's affidavit: "Even had he been honest about his intentions from the outset it is most unlikely that I would have exercised my discretion to grant him entry, pursuant to paragrpah 24 of the Immigration Rules contained in HC 169, having regard in particular to his very limited means. In all the circumstances I would also have had doubts about the realism of his stated study plans and about his intentions of returning to Nigeria and would have questioned him closely on all these aspects." Mr Riza's submission also in my judgment ignores the effect of Bugdaycay. Mr Riza seeks to distinguish Bugdaycay on the grounds that the applicants there were refugees -- that is what they stated they wished to be -- and that their true intention was to settle in this country indefinitely, whereas here the applicant's true intention was only to remain for a period necessary to complete his course, which is an intention of the same kind or nature as that of any other visitor. In my judgment this is a distinction without a difference, which does not go to the main point of Bugdaycay. Mr Riza also referred us to an unreported case of Woolf J (as he then was) in R v Secretary of State for the Home Department ex parte Galazy Medezia Awa decided on 11 March 1983. That was a pre-Bugdaycay case. That case turned on a question of fact and contains no proposition of law. In my judgment it is of no relevance to any issue in this case. If, contrary to my view, it does go further, then I agree with the criticism made of it by Glidewell LJ in his judgment at page 14 (page 19 of the bundle). It follows that I accept Mr Laws' submissions without qualification. The deception here was material in securing the applicant's entry on the footing on which it was granted; that is as a visitor for one month. He was therefore an illegal entrant. I would dismiss this appeal.

Judgment Two:

STAUGHTON LJ: I agree.

Judgment Three:

NEILL LJ: I also agree.

DISPOSITION:

Appeal dismissed. Leave to appeal to House of Lords refused

SOLICITORS:

BM Birnberg & Co London: Treasury Solicitor