Dagdalen v. Secretary of State for the Home Department

DAGDALEN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1988] Imm AR 425

Hearing Date: 4 May 1988

4 May 1988

Index Terms:

Leave to enter -- refusal -- misunderstandings -- original reasons for refusal purportedly withdrawn and new reasons substituted -- whether immigration officer had power so to act -- where a notice is conclusive. Immigration Act 1971 ss 4(1), 13, 18, sch 2 paras 6(1)-6(3): Immigration Appeals (Notices) Regulations 1984 rr 3, 4.

Held:

Appeal from Kennedy J. The appellant was a Turkish widow who arrived without entry clearance at Heathrow and sought leave to enter as a visitor. On enquiry the immigration officer erroneously concluded that she had come for settlement. She was refused leave to enter on that basis. When the true position was established and two months later, the original reasons for refusal were withdrawn and new reasons for refusal, relating to an application as a visitor were substituted. The judge at first instance rejected the argument that the immigration officer had no power so to withdraw reasons in the original notice and substitute new different reasons. The reasons were, counsel submitted, part of the notice, itself conclusive. The argument was repeated before the Court of Appeal. Held: 1. The immigration officer acted within his powers. There was nothing in the Act to prevent the substitution of reasons in a notice. 2. A notice was conclusive only in proceedings before the appellate authorities. "It is implicit that if the notice given is conclusive for appellate reasons only by virtue of subsection 2 [of section 6 of the second schedule to the Act] such a notice is not conclusive for any other purpose, including the purpose of considering the validity of various notices."

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Dagdalen (unreported, QBD, 9 February 1988).

Counsel:

A Riza for the appellant; N Pleming for the respondent PANEL: May, Stocker, Stuart-Smith LJJ

Judgment One:

STOCKER LJ: This is an appeal from a decision of Kennedy J sitting as a single judge of the Divisional Court on 9 February 1988 refusing the application for judicial review of a decision of the chief immigration officer contained in a letter of 18 November 1986 in which he purported to withdraw the reasons for refusal of leave to enter the United Kingdom and to substitute new reasons. The original grounds of refusal of leave to enter the United Kingdom were contained in a previous notice which had been served on the applicant on 18 September 1986, which was the date of her arrival at Heathrow. Before turning to consider the facts, it is convenient in the light of the course which this appeal has taken to refer to the chronology of the various events and notices which have been served, partiularly those which were served on 18 September and 18 November 1986. On 18 September 1986 the applicant arrived in the United Kingdom from Turkey. She was interviewed with the assistance of a passenger who was able to act as an interpreter and her brother and son, who were already in this country also attended and gave information to the immigration officer. As a result she was refused leave to enter, but was granted temporary admission so that representations could be made in respect of the order which had been made. On that day the notice which was served by the immigration officer was in these terms: "You have asked for leave to enter the United Kingdom for settlement but you do not hold a current Entry Clearance granted to you for that purpose and therfore I refuse you leave to enter the United Kingdom." The following day, 19 September, her solicitors made representation suggesting that the immigration officer had misinterpreted the nature of the leave that had been sought. It is not necessary to refer to that letter in detail. It is addressed to a Member of Parliament enlisting his aid in this matter. The relevant part reads: "Having discussed the case with the Immigration Service, I am of the view that there are some rather curious aspects to this decision, and the Minister might well find grounds for granting leave to remain for a period of six months." He then refers to certain aspects of the information that the immigration officer had given and in particular that the applicant was asked how long she intended to stay in the United Kingdom, to which she answered "for as long as can be given". The letter continues: "It seems to be quite clear from this account of the interview that Mrs Dagdalen [the applicant] was seeking leave to enter only for a temporary period. I do not think the Immigration Officers have correctly treated her as seeking settlement, and the notice might be cancelled for that error alone." Finally: "It does seem a little unfair for the statement of others to be treated as the true basis, when this is at variance with the application made by the passenger herself." No doubt as a result of these representations the immigration officers purported to amend the grounds of refusal which had been given on 18 September. They did so in these terms. It is a letter from the Immigration Office on 18 November, setting out the terms of the original notice of 18 September and continuing: "This letter is to inform you that those grounds for refusal should be withdrawn and replaced by the following: "'You have asked for leave to enter the United Kingdom as a visitor for six months but I am not satisfied that you intend to stay only for this limited period.'" On 11 December the Minister wrote explaining the reasons which prompted his action. It is unnecessary to cite that letter at length save to say that the Minister wrote: "The point was raised that Mrs Dagdalen may have been treated on the basis of what her relatives had said and the Immigration Service has since considered her application for leave to enter in accordance with the provisions of the Rules relating to visitors. In the light of the inconsistencies surrounding the duration of the proposed stay it was difficult to accept that she was genuinely seeking entry only for the limited period as stated by her and accordingly they have notified her of this in writing." That is a reference back to the notice of 18 November to which I have already made reference. On 30 December 1986 an application for leave to move for judicial review was put forward on Form 86A. The order which it was sought to quash was the decision of the chief immigration officer contained in the letter of 18 November 1986 purporting to substitute grounds for refusal contained in the notice of refusal of leave to enter dated 18 September 1986. It was sought to quash that decision of November on grounds inter alia that the original notice of 18 September could not be withdrawn or amended. An application was made to this court to amend Form 86A by the addition of a further decision sought to be quashed, that is to say the decision of 18 September, and for the reasons given by my Lord at the time that application was refused. That is the background of the procedures which have taken place and which give rise to this appeal. It is to be noted that the order which was sought to be quashed was that of 18 November 1986. The learned judge rejected that application and I therefore turn to the notice of appeal before this court. The first ground of appeal against the judge's decision of 9 February 1988 is that the judge "erred in law in holding that the immigration officer's decision of 18 September 1986 was neither irrational nor unreasonable." It is said that he should have held that it was Wednesbury unreasonable. The notice continues in paragraph 2: "It is therefore contended that it was not open to the immigration officer to consider the appellant's application for leave to enter as an application for settlement requiring an entry clearance. Thus his decision was void and the consequences of that are those contained in paragraph 6 of Schedule 2 of the Immigration Act 1971." I will later refer to the contents of that paragraph. It follows from that, as it seems to me, that on the notice of appeal as it now stands, no useful purpose could be served even if an attack on the reasons given in the notice of 18 September -- that such reasons were Wednesbury unreasonable -- would be successful. Unless and until the judge's refusal to quash the order of 18 November is itself successfully reversed, the reasons given in the notice of 18 September no longer stand and have been substituted by those of the notice of 18 November. It is not sought to impugn that decision as being Wednesbury unreasonable, nor ever was it. In his final submissions this morning Mr Riza submitted to the court that the issues were that the immigration officer had no power to withdraw the reasons and substitute those of 18 November because the reasons themselves form part of the notice and the notice had to be given within twelve hours under the various statutory provisions. Secondly, he said the issue was whether the notice of 18 September shou;d be quashed on the grounds that it was Wednesbury unreasonable, and, thirdly, he said that there arose before this court the question what the consequences would be if this court quashed the notice of 18 September. Mr Riza was prepared to concede that it would not follow that indefinite leave to enter would necessarily follow because of the effect upon paragraph 6(1) of sub-paragraph 6(3) of the second Schedule to the Act. As I have already stated, it seems to me that the fact that there is not raised on this appeal any attack on the judge's finding with regard to the notice of 18 November is fatal to Mr Riza's argument, but since he has in fact supported his argument that the notice of 18 September should be quashed by reference to factors which really arise in respect of the notice of 18 November, in deference to his argument it would seem to me appropriate to express my views upon them, but of course with the reservation that if I am right about the effect of the notice of appeal, those arguments are not open to him before this court. Stating therefore the facts very shortly, which I take from the judge's judgment and which are not in dispute, those facts were that the applicant is a Turkish widow some 42 years of age. She had a brother and a married sister living in this country. She arrived on 18 September, could not speak English very well, if at all, and was interviewed by an immigration officer with the assistance of a passenger to start with, and subsequently with the assistance of her brother and her son. She explained at those interviews that she had a family in Turkey but she had effectively relinquished the running of her farm to her labour force by coming to the United Kingdom. She was imprecise as to the length of time that she wanted to stay, but it was discovered that she had a return ticket to Turkey for 18 October and a certain amount of money in sterling. Her brother, Mr Bektas, told the immigration officer that the applicant was intending to remain in the United Kingdom for as long as the immigration authorities would allow in order to assist him with the running of his business so that he could have medical treatment in the form of dialysis for his kidney complaint. He said that if only a short stay was granted, he would approach the Home Office for an extension. The applicant's son confirmed the evidence of his uncle and said that it had been suggested that the applicant visit the United Kingdom by a telephone call a month earlier and as a result the son had forwarded home money for her air fare. It is relevant to the appeal, based on Wednesbury unreasonableness of the order of 18 September, to refer to the reasons given in the immigration officer's affidavit in support of his decision that he had construed the application as an application for indefinite leave. That appears in paragraph 5 of his affidavit, which reads as follows: "I then considered the facts of this case. The Applicant was a widow with no immediate family members living near her in Turkey. She had left her property and her business in Turkey to come to the United Kingdom seeking entry for an indefinite period. Both the Applicant and her sponsor had confirmed that she wished to remain in the United Kingdom for as long as she was allowed. In the circumstances, although this intention had not specifically been stated by the Applicant, I took the view that the Applicant's real intention was to settle in the United Kingdom but she did not hold a Entry Clearance for that purpose. Accordingly, with the authority of [the Chief Immigration Officer], I refused the Applicant leave to enter pursuant to paragraph 46 of the Immigration Rules as amended by HC503)." It was the submission on behalf of the applicant that that paragraph is capable of supporting the inference that the immigration officer reached a decision which no reasonable immigration officer could have reached. That is the issue, in so far as it becomes relevant, on this appeal to quash the notice of 18 September. It is that paragraph which is partly relied upon in support of that submission. In so far as it is still relevant to be decided, I will refer to it again later. For the reasons that I have already stated, it seems to me that before that aspect of the appeal could sensibly be considered, Mr Riza must first establish that the reasons for the decision of 18 September still subsist as valid reasons. That is to say he has to show not only that there was no power to amend the reasons, but that the judge was wrong in holding that this power did exist and refusing judicial review of the decision of 18 November. Although the matter has not been raised in the notice of appeal, it would seem appropriate in the light of the course that the argument has taken to consider shortly Mr Riza's argument on that basis; that is to say his argument that there was no power to amend the reasons given in the original notice of 18 September by the notice of two months later, 18 November. He starts his argument by reference to paragraphs 6(1), (2) and (3) of the second schedule of the Act of 1971. He contends that those provisions have to be read in conjunction with certain sections of the Immigration Act itself and in particular in conjunction with sections 4(1), 13, 18 and regulations 3 and 4 of the Immigration Appeals (Notice) Regulations 1984. Accordingly I start by reference to paragraph 6 of the second schedule to the Act. That section bears the heading "Notice of leave to enter or of refusal of leave." Paragraphs 6(1), (2) and (3) read: "(1) Subject to sub-paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not a British Citizen) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave. (2) Where on a person's examination under paragraph 2 above he is given notice of leave to enter the United Kingdom, then at any time before the end of twelve hours from the conclusion of the examination he may be given a further notice in writing by an immigration officer cancelling the earlier notice and refusing him leave to enter. (3) [to which sub-paragraph (1) was subject] Where in accordance with this paragraph a person is given notice refusing him leave to enter the United Kingdom, that notice may at any time be cancelled by notice in writing given him by an immigration officer; and where a person is given a notice of cancellation under this sub-paragraph, the immigration officer may at the same time give him a limited leave to enter, but in the absence of a notice giving a limited leave to enter the notice of cancellation shall be deemed to be a notice giving him indefinite leave to enter." Mr Riza submits that in the light of those paragraphs there was no power on the immigration officer to amend the reasons given in a notice, since the reasons themselves form part of the notice and to withdraw the reasons would amount to withdrawing the notice itself. In so far as the Act is concerned, the sections which are relied upon are, first, section 4(1) which confers upon an immigration officer the power to grant or refuse leave. It is not necessary to read that familiar section in full. Section 13, upon which Mr Riza particularly relies, reads as follows. It is headed "Appeals to adjudicator or Tribunal in first instance": "13(1) Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal." Subsection (3) does not need to be read in whole, but the addendum to it reads: ". . . and a person shall not be entitled to appeal against refusal to leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit." So that requires a person exercising his right to appeal under section 13 in the normal circumstances to leave the country before the appeal procedures are put into operation. It is sufficient to observe that by subsection (5) there is no entitlement to appeal against a refusal of leave where the ground is that its exclusion is conducive to the public good. Mr Riza submits that therefore section 13 has the effect of producing two classes of potential applicant, those who have a right of appeal and those who have not. It may be appropriate before reading the relevant regulations, to refer to section 18 of the Act which, so far as relevant, reads as follows: "18(1) The Secretary of State may by regulations provide -- for written notice to be given . . . for the notice to include a statement of the reasons (sub-paragraph (b)) (c) the notice to be accompanied by a statement containing the rights of appeal and (d) and the form of any such notice or statement." And subsection (2), which is important, reads: "(2) For the purpose of any proceedings under this Part of this Act [I interpolate that 'this Part of this Act' is Part 2 relating to appeal procedures] a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken." It is under the enabling powers of section 18 that the Immigration Appeals (Notices) Regulations of 1984 were made. The relevant regulations which are relied upon by Mr Riza are, first, reguataion 3(1) which reads: "Subject to the following provisions of this Regulation, written notice of any decision or action which is appealable (or would be appealable but for the grounds of the decision or action) shall as soon as practicable be given in accordance with the provisions of these Regulations to the person in respect of whom the decision or action was taken." That requires the notice to be given promptly and for reasons already referred to, it is required to be given within twelve hours of the end of any enquiries that may have been made. It also refers to Regulation 3(2)(a): "Any such notice as is referred to in paragraph (1) shall be given (a) in the case of a decision or action taken by an immigration officer in the exercise of powers conferred on him as such, by the immigration officer." Regulation 4(1) -- Contents of notice: "Subject to the provisions of paragraph (2), any notice given under Regulation 3 shall: (a) include a statement of the reasons for the decision or action to which it relates;". Mr Riza submits that in the light of those regulations the reasons given in the notice form part of the notice itself and accordingly they cannot be withdrawn or substituted. It is to be noted that section 13 of the Act and schedule 2, including paragraph 6, are all related to appeal procedures. The terms of section 18 have already been read and in my view subsection (2) of section 18 makes it clear that the notice is conclusive of the person by whom it was given and of the ground upon which it was given so far as appeal procedures are concerned, that is to say an adjudicating officer or where appropriate the Appeals Tribunal having the notice before them would not be able to go behind the identity of the person who purported to sign it, or the ground upon which it was taken. Mr Riza seeks to submit that that subsection applies not only to an appellate jurisdiction, but also to the validity of the notices given. In my judgment that argument in so far as it was advanced is not valid and I would for my part approve the submission made by Mr Pleming, on behalf of the respondents, that it is implicit that if the notice given is conclusive for appellate reasons only by virtue of subsection (2), such a notice is not conclusive for any other purpose, including the purpose of considering the validity of various notices. In my view therefore the basic submission put forward by Mr Riza in support of his contention that there was no power to vary, or alter, or amend the notice of 18 September is not valid. There is nothing in the Act to which we have been referred which is capable of supporting any such conclusion and accordingly, in so far as the matter arises on this appeal, I would reject his argument that the notice of 18 November could not validly amend the reasons contained in the notice of 18 September for the reasons I have indicated. But it seems to me also that that conclusion is supported by convenience. Permission was granted for the purpose of making representations. If it is not possible to amend the reasons and if, as Mr Riza submits, any such amendment would render the whole notice a nullity, there would be no incentive and little likelihood that an applicant will be allowed to remain to raise such representations. He is likely to be sent home forthwith and left his appeal rights under the Act after leaving the country pursuant to section 13(3). It seems to me therefore that the learned judge was correct in refusing to grant judicial review of the decision of 18 November. He did so in these terms: "It is worth noting that paragraph 6(1) is expressly made subject to sub-paragraph (3), but the provisions of that sub-paragraph cannot be applied to what occurred on 18 November 1986, because on that occasion the chief immigration officer did not purport to cancel the notice of 18 September. He merely purported to alter its contents by withdrawing and replacing the grounds for refusal." In my view that part of his judgment is wholly accurate and correct. Later on page seven the learned judge said: I accept from Mr Riza that the Act and the Regulations are so formulated as to ensure that in any normal case an intending immigrant receives notice very soon after being interviewed, and is able to rely upon that notice as evidence of its contents if he or she wishes to appeal, but I would be reluctant to hold that where after a notice of refusal has been issued a passenger complains that the nature of her application has been misunderstood, and the immigration officer reconsiders her application on the basis on which she wishes to have it reconsidered, any consequential attempt by him to amend his reasons for refusing entry will lead this court to say that both the original notice and the notice as amended can no longer stand." Again, I wholly agree with those reasons. It follows, therefore, that the decision so far as reasons were concerned, was as substituted by the notice of 18 November. Accordingly whether or not the original decision of 18 September can be impugned on the grounds of Wednesbury unreasonableness, in my view, becomes academic. Those reasons are no longer part of the decision and that aspect of the matter is not the subject of appeal to this court, though for the reasons that I have given, if it were the appeal on that aspect would not succeed. I would also add that so far as the discretionary remedy of judicial review is concerned, if Mr Riza's submissions were right, the matter would be referred back for reconsideration and in practice that reconsideration has already taken place. Accordingly in would seem to me unlikely that in the exercise of discretion judicial review would be an appropriate remedy. Accordingly I would refuse this appeal against the judge's refusal to grant an order of judicial review to quash the order of 18 November in so far as it arises at all on this appeal. It therefore seems to me unnecessary to consider the argument as to whether the decision of 18 September was unreasonable on Wednesbury grounds in its original form. Reference has already been made to paragraph five of the immigration officer's affidavit. The submission on behalf of the applicant is that there was nothing which emerged at the interview to justify the immigration officer's conclusion that the applicant was seeking settlement; therefore the absence of an entry certificate was irrelevant and not a proper consideration which he should have taken into account as supporting his reasons for refusal. The question therefore would be, "was the conclusion that the applicant was seeking indefinite leave to enter unreasonable in the Wednesbury sense?" I find it unnecessary to decide that question. It certainly is an arguable one, but on the facts before him the only proper and reasonable conclusion would be that the applicant was seeking limited leave to enter. However, for the reasons that I have given, it does not appear to me necessary to express any concluded view on that aspect of the case. Accordingly, for the reasons that I have given, in my view this appeal fails and should be dismissed and there should be no order of judicial review as sought.

Judgment Two:

STUART-SMITH LJ: I agree.

Judgment Three:

MAY LJ: I agree that this appeal should be dismissed for the reasons given by my Lord in the judgment that he has delivered.

DISPOSITION:

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

SOLICITORS:

Bernard Sheridan & Co; Treasury Solicitor

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