Ali v. Secretary of State for the Home Department

Ali v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1988] Imm AR 274

Hearing Date: 15 January 1988

15 January 1988

Index Terms:

Returning resident -- refusal of admission -- immigration officer concluded original admission by deception through substituted photograph in passport -- whether "port refusal" or "illegal entrant" case -- burden and standard of proof -- whether Khawaja applied. Immigration Act 1971 ss 3(1)(a), 3(4) 4(1),(2), 33(1), sch 2 paras 2(1), 8, 9. HC 169 paras 56,76.

Immigration Officer -- ambit of duty -- obligation to consider both limbs of the returning resident rule but no obligation to conduct roving expedition through all rules.

Held:

Appeal from Nolan J. The appellant, a citizen of Bangladesh, was refused leave to enter on arrival at Heathrow in August 1985. He claimed he had been settled in the United Kingdom since the 1960's and sought leave to enter as a returning resident under paragraph 56 of HC 169. After enquiry the immigration officer concluded that the original entry by the appellant (which he thought was in or about 1978) had been secured by deception through the use of a substituted photograph in a passport. He refused leave and directed the removal of the appellant pursuant to paragraph 8 of the second schedule to the 1971 Act. On application for judicial review it was argued that if the immigration officer's conclusion were correct, the appellant was an illegal entrant: thus the test laid down in Khawaja applied. The application was dismissed, the learned judge holding that the immigration officer was entitled to proceed, as he had, under schedule 2, paragraph 8 and not paragraph 9; the appellant had not been treated as an illegal entrant and Khawaja did not apply. That argument was repeated before the Court of Appeal. It seemed that the immigration officer had not, in his notice of refusal, alluded to the second limb of paragraph 56: he should have done, albeit he only had a limited duty to apply specific rules. Held: 1. For removal directions under paragraph 9 of the second schedule the precedent fact must be that the subject of the direction is an illegal entrant, per Khawaja. In this case the appellant was dealt with on an ordinary entry control basis, the immigration officer proceeding from paragraph 2 to paragraph 8 of the second schedule. Khawaja did not apply, Abdul Sattar followed. 2. The immigration officer, in the events which had happened should have considered both limbs of paragraph 56 of HC 169 and did not appear to have done so although (per Mann LJ) "I do not intend to suggest that it is part of an immigration officer's duty to conduct a roving expedition through all the paragraphs to see whether a person before him is eligible under any of them." 3. However, even if he had considered the second limb of paragraph 56, refusal would still have occurred in the light of the provisions of paragraph 76: in consequence, the discretionary remedy of judicial review would not be granted. SLADE LJ took the opportunity of clarifying his judgment in ex parte Abdus Sattar.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: [1947] 2 All ER 680. Khawaja v Secretary of State for the Home Department [1984] 1 AC 74: [1982] Imm AR 139. Taj Mohd Swati v Secretary of State [1986] Imm AR 88: [1986] 1 All ER 717. R v Secretary of State ex parte Fazor Ali [1987] Imm AR 471. Abdus Sattar v Secretary of State [1988] Imm AR 190.

Counsel:

S Husain for the appellant; GR Sankey for the respondent PANEL: Slade, Neill, Mann LJJ

Judgment One:

MANN LJ: This is an appeal from a decision of Nolan J dated 29 April 1987. By that decision he refused the appellant's application for judicial review of a decision of an immigration officer at Heathrow Airport dated 23 August 1985 whereby the appellant was refused leave to enter the United Kingdom. The immigration officer was a Mr David Kirkman. The application for judicial review sought an order of certiorari to quash the immigration officer's decision and, more optimistically, an order of mandamus requiring the grant of leave to enter. Certain facts can be shortly put. The appellant, Mohammed Fazor Ali, before 26 June 1984 lived in the United Kingdom for a number of years. He had the benefit of admission for settlement. On occasions he visited Bangladesh. The last such visit seems to have been in 1980. On return in the same year he was admitted presumably as a returning resident and his passport was endorsed with indefinite leave to stay. The passport, which was endorsed, is a passport issued in 1973. The significance of that will appear. On 26 June 1984 the appellant departed for Bangladesh where he remained for about 14 months. On departure his extant leave -- that is the leave of 1980 -- would have lapsed: see section 3(4) of the Immigration Act 1971. Accordingly, when and if he returned, he would require leave to enter the United Kingdom. That is the consequence of section 3(1)(a) of the Act of 1971 which provides (as amended): "(1) Except as otherwise provided by or under this Act, where a person is not a British citizen -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;". Whatever his nationality may be, this appellant is not a British citizen. The administration of control over admission imposed by section 3 is dealt with in section 4. So far as material subsection (1) provides: "The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers . . ." Subsection (2) provides so far as material: "The provisions of Schedule 2 to this Act shall have effect with respect to --

. . .

(b) The examination of persons arriving in or leaving the United Kingdom by ship or aircraft, . . . and (c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully; and (d) the detention of persons pending examination or pending removal from the United Kingdom;". Schedule 2 to the Act which is there referred to is extensive but I need refer only to certain paragraphs. Paragraph 2(1) provides as amended: "An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft . . . for the purpose of determining --

. . .

(b) whether, if he is not a British citizen, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave." Paragraph 8 provides: "(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may . . ." and then I summarise: give a direction for a person's removal from the United Kingdom. I should read paragraph 9 for reasons which will appear later: "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)." That is to say a removal direction. The expression "illegal entrant" is a term of art which, unless the context otherwise requires, means 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 (see s 33(1) of this Act). The appellant returned to Heathrow on 16 August 1985 and claimed admission for settlement under paragraph 56 of the Statement of Changes in Immigration Rules, HC 169. I should read that paragraph: "A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the two years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than two years." There are thus two limbs to paragraph 56. The appellant based his application for leave upon the first limb. His affidavit in the proceedings for judicial review adheres to that claim. In paragraph 19 he deposes: "I am a Commonwealth Citizen. I was settled in the United Kingdom at the coming into force of the 1971 Act, and I have been settled here at the time during the 2 years preceding my return. In fact I have returned after an absence of 14/15 months only." Paragraph 56 of the Statement of Changes is, as are all the paragraphs relating to control on entry, subject to paragraph 76. So far as material, that paragraph provides: "Except as provided for in paragraph 73, the fact that a passenger satisfies the formal requirements of the foregoing provisions of these rules is not conclusive in his favour. Leave to enter may be refused if, for example, the passenger has not observed the time limit or conditions imposed on any grant of leave to enter or remain; if, whether or not to his knowledge, false representations have been employed or material facts not disclosed orally or in writing, for the purpose of obtaining an entry clearance; or if a previous leave to enter or remain has been obtained by deception." The significance of that will emerge. On his arrival and interview by the immigration officer the appellant produced two Bangladeshi passports. The first was that of 5 June 1973 which was endorsed with leave to enter, as I have said. The second was a passport dated 20 September 1983, which replaced on its expiry that of 1973. The only endorsement upon that passport was that of embarkation on 26 June 1984. The appellant was detained for examination. After that examination he was refused leave to enter on 23 August. That is the decision which it is sought to impugn in the judicial review proceedings. The notice of refusal is in these terms: "You have asked for leave to enter the United Kingdom as a person settled in the United Kingdom at the coming into force of the Act and during the two years preceding his return but I am not satisfied this is so. As evidence of this you have produced Bangladesh passports number BOO8099 and number E414543 but I am not satisfied these documents satisfactorily establish your identity and nationality and you therefore have no claim to admission under the Immigration Rules. I therefore refuse you leave to enter the United Kingdom. I have given directions for your removal at 17.30 hrs on 24 August 1985 by aircraft BG 004 to Dhaka, Bangladesh." Mr Kirkman has sworn an affidavit for employment in the judicial review proceedings. In it he states that he was prepared to accept that the appellant had lived in the United Kingdom since 1978. Mr Kirkman's review of the case is expressed in paragraph 13 of his affidavit, which I must quote: "The Applicant sought leave to enter the United Kingdom as a returning resident, being a person settled in this country, having indefinite leave to enter, prior to the Immigration Act of 1971 coming into force. To support his claim he produced two Bengali passports, the first issued in London in 1973 and endorsed with indefinite leave to enter on the 28 February 1974 and also three subsequent admissions when he was given leave to enter. The second passport, issued in London in 1983, only contained an embarkation stamp for the 26 June 1984. From the interviews conducted with the Applicant, I was not satisfied that he had lived in this country since 1966 but had probably lived here since 1978 when his medical registration took place. A further examination of the passport issued in 1973 by the Forgery Unit at the Intelligence Unit, revealed that the passport photograph had been substituted and the Applicant had therefore assumed the identity of Mohammed Fazor Ali and had used this passport to gain admission as a person settled here, knowing that he was not entitled to indefinite leave to enter and was not entitled to settlement in this country. On the strength of this passport the Applicant had successfully obtained a correctly issued passport in 1983 in the same identity. Having satisfied myself that the document was not the Applicants and he was therefore not entitled to indefinite leave to enter as a returning resident, I confronted the passenger with the known facts, but he did not admit to any photograph substitution and maintained that he was Mohammed Fazor Ali. Furthermore, he was adamant that he had resided in this country since 1966. As it was necessary for the Applicant to prove to me that he was Mohammed Fazor Ali and that he had resided in this country, free of conditions since 1966 and since the 1973 issued passport contained a substituted photograph, I could not be so satisfied as to his real identity nor could I be satisfied that he was entitled to enter as a returning resident. Taking into account these factors with the Authority of Chief Immigration Officer, Mr M Wadey, I refused the Applicant leave to enter pursuant to paragraph 56 of the Statement of Changes in Immigration Rules HC 169." The grounds of appeal to this court are as follows: "1. The Divisional Court should have applied the 'Khawaja' (1984 AC 74, HL) test; and, not the Wednesbury' (1948 1 KB 233, CA) test. The matter has, thus, been decided applying the wrong standard and wrong test of the burden of proof. 2. The ruling has substantially circumcised (sic) the protection that has been given to all immigrants who are settled in the United Kingdom by the House of Lords in 'Khawaja' and has been reinforced by the Court of Appeal in (Momin Ali) (1984) 1 WLR 663. The protection has been rendered non-effective as soon as an immigrant puts his feet outside the country even on a one-day excursion. 3. To make the 'Khawaja' principles non-applicable, the learned Judge has relied on a passage from Lord Bridge's speech in a later case (ex parte Bugdaycay (1987) 2 WLR 606, 611B and E, HL). Such reliance has been an error in law since, in the later case, Lord Bridge has been referring to a 'statute' and not to a 'rule'. 4. The ground that the immigration officer had failed to consider the appellant's claim to entry under the second limb of rule 56 of HC 169 has not been adjudicated upon. 5. The learned Judge has erred in law in distinguishing the appellant's case from that of those who are 'physically' inside the United Kingdom. (a) Section 33(1) of the Immigration Act 1971. (b) R v Secretary of State for the Home Department, ex parte Badwal, unreported, jd 29 April 1980, CA. 6. The refusal of admission has been unfair, unjust and unreasonable." Mr Husain's prime submission for the appellant was that the appellant was treated as an illegal entrant; that, on the respondent's case but not of course on his, he was an illegal entrant within the meaning of section 33 of the Act in that he had entered in breach of the immigration laws. Accordingly, said Mr Husain, the appellant was entitled to the protection of the Khawaja decision. The decision is well-known. It is to the effect that, where a direction is to be given under paragraph 9 of Schedule 2 to the Act, the precedent fact must be that the subject of the direction is an illegal entrant and that the onus is on the immigration officer to prove that and that he must discharge his onus on a high balance of probability. Plainly, on the immigration officer's evidence and case, the appellant had been an illegal entrant in that he had obtained leave to enter by production of a passport on which the photograph had been altered, and that is deception. However, on 23 August 1984, that seems to me no more than an event of historical interest. On that day he was being dealt with not as an illegal entrant but on an ordinary entry control basis and was simply refused leave to enter. The only precedent fact for a removal direction under paragraph 8 of the schedule was a refusal of leave. The procedure is entirely coherent. One proceeds from paragraph 2 to paragraph 8. In my judgment, this court so held in R v Secretary of State for the Home Department ex parte Abdus Sattar, unreported at present, (See now [1988] Imm AR 190) a decision of 1 December 1987. The facts in that case were stated by my Lord, Slade, LJ as follows: "The applicant is a citizen of Bangladesh. On 13 June 1980 at the age of 21 he entered the United Kingdom. He claimed that he was a dependent son of a man called Abdus Salam who had been in this country for some years already. On the basis of these representations he was admitted to the United Kingdom and was given leave to enter for an indefinite period. For some years he remained with Abdus Salam working in this country. Then in 1984 he left the United Kingdom and returned to Bangladesh, from where he originally came. On 8 May 1985 he presented himself at Heathrow Airport and sought leave to enter as a returning resident under rule 56 of the Immigration Rules contained in the House of Commons Paper 169." My Lord then cites the rule: "The applicant relied on the second sentence of this rule. However, the provisions of this rule are qualified by rule 76 which, so far as material, states" and my Lord then sets out the material portion of that rule, and continues: "While the applicant was being interviewed by an immigration officer on 8 May 1985, according to the immigration officer's evidence, the applicant admitted that he was not in fact the son of Abdus Salam but that he was the son of a man called Idris Ali, Idris Ali being, on the evidence before us, a person who had never left the Indian sub-continent. If that was the case, the applicant's previous leave to enter obtained in 1980 would have been 'obtained by deception' within the meaning of rule 76. On the same day the applicant was invited to sign, and did sign, a written admission to the same effect. On the occasion of his arrival on that day, 8 May 1985, he was met at the airport by a young man called Abdul Kabir, who was indeed a son of Abdus Salam and claimed to be the applicant's brother. However, during the course of a separate interview by another immigration officer, Abdul Kabir admitted that the applicant was not the son of Abdus Salam but that he was the son of Idris Ali. On 8 May 1985 the immigration officer accordingly refused the applicant leave to enter and directed his removal to Dhaka. The written notice of refusal of leave of that date was addressed to the applicant (page 5 of our bundle) and so far as material stated as follows:

'You have sought leave to enter on the ground that you had an indefinite leave to enter/remain in the United Kingdom when you left, and that you have not been away for longer than 2 years, but this is not conclusive in your favour. I am satisfied that the leave given on 13.6.80 was obtained by deception. I therefore refuse you leave to enter in accordance with paragraph 76 of the Statement of Immigration Rules HC 169.'"I need read no further.

There was before this court a single ground of appeal which I quote: "The Learned Judge was wrong in dismissing the Application for Judicial Review on the basis that it was a 'Port of Entry Refusal Case' and not a case falling within the principles laid down in the case of Khawaja.'" At page 9 my Lord said this: "On behalf of the applicant in the present case, Mr Quddus, in opening his appeal, submitted to us that the order for removal was made by the immigration officer under paragraph 9 of Schedule 2 to the 1971 Act, and on these grounds submitted that the case fell precisely witin Khawaja principles. However, having heard the submissions of Mr Pleming on behalf of the respondent, he accepted that this is not a paragraph 9 case but one falling in fact within paragraph 8(1). This in my judgment makes a crucially important difference. Paragraph 8(1) (which I have already read) confers on an immigration officer a general power to make an order for the removal of a person in cases where 'a person arriving in the United Kingdom is refused leave to enter'. Unlike the power conferred by paragraph 9, the terms of this power do not render it a precedent fact which has to be established that the applicant actually is an illegal entrant. It is therefore the refusal of leave to enter itself which the applicant is obliged to challenge in the present case. If that was valid, so was the order for removal." I read no further. In my judgment, the words which I have read are applicable to this case. This was not a paragraph 9 case at all. This appellant was dealt with under the coherent set of provisions to which I have referred relating to allowance or refusal of leave to enter. Accordingly, in my judgment, the Khawaja principle has no application to this case. In my judgment, the decision of the immigration officer in regard to the first limb of paragraph 56 can be challenged as a matter of law only by reference to the Wednesbury principle, that is to say it would have to be shown to be irrational, absurd or perverse. The immigration officer's decision in relation to the first limb of paragraph 56 was because he could not be satisfied as to the appellant's nationality. Accordingly, by inference, he could not be satisfied that he was a Commonwealth citizen. On the evidence before him I would have thought it quite impossible for this court to intervene on Wednesbury principles. On the merits, the remedy is an appeal under section 13(1) of the Act, albeit that is only permissible after the appellant has left the country. Accordingly, in my judgment, Nolan J was correct in the conclusion which he reached and the route by which he reached it. I come to a point which was raised seemingly for the first time in the course of argument in this court. Paragraph 56 has two limbs. The applicant's application was founded upon the first. But Mr Sankey has accepted on behalf of the Department that the immigration officer should have looked also at the second limb, at least once he had become satisfied that the appellant had been in the country since 1978. In my judgment, I think Mr Sankey was right in that concession. It appears that the appellant is illiterate and of limited intelligence. I do not intend to suggest that it is any part of an immigration officer's duty to conduct a roving expedition through all the paragraphs to see whether a person before him is eligible under any of them; but, in my judgment, the two limbs under paragraph 56 should be looked at together. It is unclear as to whether the second limb was considered. The Immigration Appeals (Notices) Regulations 1984 provided that written notice of any decision or action which is appealed, as was this refusal of leave to enter, shall include a statement of the reasons for the decision or action to which it relates: see regulation 4(1)(a). In regard to that provision Sir John Donaldson (as he then was) said in R v Secretary of State for the Home Department, ex parte Swati [1986] 1 All ER 717 at 722D: "What is or is not a 'statement of reasons' sufficient to comply with the 1984 regulations is to be determined by the answers to two questions. (1) What is the relevant decision or action? (2) Why did the person concerned take that decision or action? The answer to the latter question provides the reasons which have to be stated." The notice of refusal is silent as to any reason for a rejection under the second limb of paragraph 56. However, that said and the flaw being what it is, I cannot see that any useful purpose would be served by a remission in this case. It seems quite clear from the affidavit of Mr Kirkman that the second limb claimed would fail by reason of paragraph 76, that is by reason of deception. If such a reason had been given I could not flaw it as perverse, absurd or irrational on the basis of the material which was before the immigration officer. The grant of relief on judicial review is discretionary. I would, in the exercise of discretion refuse relief and, accordingly, I would dismiss this appeal.

Judgment Two:

NEILL LJ: I agree.

Judgment Three:

SLADE LJ: I also agree. I merely wish to add one observation. In the course of my judgment in the case of R v Secretary of State for the Home Department, ex parte Sattar, ([1988] Imm AR 190) referred to by Mann LJ I said that I accepted the submission that, if the case of the Secretary of State was correct, the applicant would be an "illegal entrant" within the definition contained in section 33(1) of the Immigration Act 1971, though I went on to say that that was in my view an irrelevant consideration because the order for removal had been made under paragraph 8 of Schedule 2 to the 1971 Act, rather than under paragraph 9, as it was in Khawaja. More accurately, I think I should have said that, if the case of the Secretary of State was correct, the applicant would in the past have been an "illegal entrant" within the relevant definition; but he was not being dealt with as such. There is nothing else which I wish to add to the judgment of Mann LJ with which I am in full agreement.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Hafiz & Co; Treasury Solicitor