Parshotam Singh v Secretary of State for the Home Department

Parshotam Singh v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1989] Imm AR 469

Hearing Date: 8 February 1989

8 February 1989

Index Terms:

Removal directions -- refusal of leave to enter -- removal directions given by immigration officer in notice of refusal -- applicant granted temporary admission -- Secretary of State upholds refusal of leave to enter -- immigration officer purported to give new removal directions outside two-month period -- whether the Immigration Officer had power to do so -- whether the original removal directions had lapsed -- whether later removal directions had to be given by Secretary of State -- the purpose of the provisions in schedule 2, para 8 of the 1971 Act. Immigration Act 1971 ss 27, 32(1), schedule 2 paras 8, 10, 21(1).

Held:

Appeal from Macpherson J. The appellant arrived at Heathrow on 27 August 1986, and sought leave to enter as a visitor. Leave was refused and removal directions by a specified flight were included in the notice of refusal, pursuant to paragraph 8(1) of the second schedule to the 1971 Act. The appellant however was granted temporary admission. The Secretary of State reviewed the case but upheld the immigration officer's original refusal of leave to enter. The immigration officer purported then to issue new removal directions. By that time the two-month period specified in paragraph 8(1) of the second schedule had expired. It was contended that in those circumstances the immigration officer had no power to issue new removal directions, that power being reserved to the Secretary of State. The learned judge at first instance rejected that submission, holding that the provisions of the Act had been satisfied by the issue of the original directions, within the time limit, with the notice of refusal of leave to enter. The Court considered the purpose of the provisions of schedule 2 to the 1971 Act. Held: 1. The original directions given by the immigration officer pursuant to paragraph 8 of the second schedule to the Act had lapsed 'in every sense.' 2. It followed that the immigration officer had no power to issue the subsequent removal directions. They could not be considered to be a variation of the original directions he had validly given. It was necessary for the Secretary of State to issue fresh directions under paragraph 10 of the schedule. 3. The appeal therefore would be allowed albeit with reluctance, because the time limit in paragraph 8(2) of the second schedule was there for the benefit of the carrier, not the would-be entrant. The only difference in the end was who had to pay for the return journey. 4. Counsel for the Secretary of State had sought to rely on a purposive construction of the relevant paragraphs: "there is a limit to purposive construction when the words simply cannot bear the meaning which is sought to be put on them."

Cases referred to in the Judgment:

%TR v Secretary of State for the Home Department ex parte Parshotam Singh (unreported, QBD, 7 March 1988).

Counsel:

S Barstow for the appellant; D Pannick for the respondent PANEL: Lloyd, Mustill LJJ, Hollings J

Judgment One:

LLOYD LJ: The applicant, Mr Parshotam Singh, arrived in this country on 27 August 1986. He applied to enter as a visitor for a period of six weeks. He said that he wished to visit a friend in order to study the social habits of Indian expatriates in the United Kingdom. He also wished to cover the Commonwealth Games as a journalist. But he was too late for that purpose as they had already taken place. Mr Singh was refused leave to enter on his arrival by the immigration officer. He was, however, granted temporary admission under the provisions of paragraph 21(1) of schedule 2 of the Immigration Act 1971. His case was then taken up by a Member of Parliament. Whilst still in the United Kingdom on the basis of his temporary admission, he re-married his former wife, who, with their three children, had arrived in this country and obtained indefinite leave to remain. In due course the applicant's case was considered by the Secretary of State. In a letter, dated 17 March 1987, addressed to Mr Harry Greenway, MP, the Minister of State, Mr Waddington, explains his reasons in great detail for upholding the immigration officer's decision for refusing leave to enter. He went on to point out that the applicant would have a right of appeal to an independent adjudicator, but only after his return to India. Following that letter, on 21 March 1987 the immigration officer gave directions for the applicant to be removed by a flight, which he indicated, on 26 March 1987. There was then an application for judicial review on the ground, inter alia, that the removal directions were unlawful, having been issued more than two months after the initial refusal of leave to enter, contrary to the provisions of paragraph 8(2) of schedule 2 of the Act. Paragraph 8 provides: "(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below -- (a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or (b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or (c) give those owners or agents directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the directions to a country or territory so specified . . . (2) No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom." Macpherson J rejected the argument that the removal instructions were unlawful. He held that removal instructions had indeed been given within the two months specified in paragraph 8(2). They were given on or about 27 August 1986 when the applicant was first refused entry. Mr Barstow, before us, argued that there is no evidence of any directions having been given to a carrier in August 1986. But what better evidence could there be than the document in which the immigration officer records his refusal of leave to enter? The document is directed to the applicant. Paragraph A states, under the heading "Removal Directions": "I have given directions for your removal at 1800 hrs on 30.8.86 by aircraft BA 3 to Delhi, India." It is true that the immigration officer does not refer to those removal instructions in his affidavit. But there he was dealing with the merits of the application to enter and not with the question of removal directions. I said that there could be no better evidence of removal instructions having been given to the carrier than that document. But Mr Pannick on behalf of the Secretary of State has gone one better, because he has produced a copy of the directions themselves given by the immigration officer to British Airways. We looked at those directions de bene esse. They are dated 27 August, 1986. Paragraph B reads: "I hereby direct you to remove the person named above from the United Kingdom by BA 002 to Delhi, India, at 1800 hrs on 30.8.86." That is a document which is, as I say, directed to the carrier. The details correspond precisely with the details which the immigration officer had given in his refusal of leave to enter. I for my part would have been willing to allow the removal directions to be put before this court as fresh evidence, since the point that there was no evidence as to the original removal directions was taken for the first time before this court. But it is unnecessary to decide the case on that basis, since the document refusing leave to enter is, in my judgment, sufficient evidence that the immigration officer did give removal directions as he had said. So there is, with great respect, nothing in Mr Barstow's first point. The second point is, however, much more troublesome. Mr Barstow points out that the original removal directions have lapsed, as in one sense they plainly have. They can no longer be complied with. He argues that those directions having lapsed, they cannot now be revived by the subsequent removal directions given in March 1987. The proper course was for the Secretary of State to have given fresh directions under paragraph 10 of schedule 2. Paragraph 10 provides: "(1) Where it appears to the Secretary of State . . . (b) that directions might have been given in respect of a person under paragraph 8 above but that the time limited by paragraph 8(2) has passed; then the Secretary of State may give to the owners or agents of any ship or aircraft any such directions in respect of that person as are authorised by paragraph 8(1)(c)." Then paragraph 10(3) provides: "The costs of complying with any directions given under this paragraph shall be defrayed by the Secretary of State." It is clear that the Secretary of State did not exercise the powers which he could have done under that paragraph. That is clear from the fact that the removal directions given in March 1987 were signed not by and on behalf of the Secretary of State, but by the immigration officer. Mr Barstow concedes that this point has no merit whatever since the time limit imposed by paragraph 8(2) is a time limit imposed for the benefit of the carrier and not for the would-be entrant. Nevertheless, he submits that the directions were unlawful in the sense that they were directions which this immigration officer had no power to give since the time limit within which he was entitled to give directions had expired. Mr Pannick makes three points by way of answer. First, he submits that if there is a power to give directions, as plainly there is under paragraph 8, then there is a power to vary those directions. He refers us in that connection to section 32(1) of the Act, which provides: "Any power conferred by Part I of this Act . . . to give any directions includes power to revoke or vary . . . directions." The original directions were given within the two months' period. Indeed they were given on the very day on which the applicant arrived. All that happened thereafter was that the immigration officer varied the particulars. That was Mr Pannick's first point. Secondly, he drew attention to the purpose of the two months' time limit. This is, he submits, so that the carrier may have a chance to check his records while the matter is still fresh in his mind in order that he can satisfy himself that he is the relevant carrier for the purpose of paragraph 8; in other words, that he is the carrier who has brought the entrant to our shores in the first place. The purpose of paragraph 8(2), submits Mr Pannick, is to protect the carrier. It has no other purpose. Once the two-month time limit has expired the carrier may still be obliged to return the immigrant, but at the Secretary of State's expense, not his own. Thirdly, Mr Pannick drew our attention to the consequences if the judgment below were not upheld. If, for example, the immigration officer were to allow temporary admission under paragraph 21(1), as he frequently does, and the person granted temporary admission were to abscond, the immigration officer would lose the power to give removal directions, once the two months' period was up. That, submits Mr Pannick, could not possibly be right. It could not be right that only the Secretary of State could give directions in those circumstances defraying the cost himself under paragraph 10(3). Those were the three answers given by Mr Pannick. I see much force in his argument as to the purpose of the two-month time limit. Once a direction has been given within the two-month time limit, the purpose of paragraph 8(2) has been fulfilled. It matters not thereafter to the carrier or anybody else when the carriage is in fact performed -- whether within the two months, or within two years or whatever period. The carrier has had the notice which he needs to enable him to check his records to ascertain whether or not he is the relevant carrier. But that argument, forceful though it is, cannot prevail over the language of paragraph 8(2). There is a limit to purposive construction when the words simply cannot bear the meaning which is sought to be put upon them. That is the position here. Mr Pannick argues that the March 1987 directions were a variation of the original directions. But I do not see how that can be so. On their face they appear to be fresh directions given outside the statutory time limit. Nor can they be regarded as a resuscitation or revival of the original instructions, which was the metaphor which appealed to the learned judge. The truth is that the original removal instructions have lapsed in every sense. No effective instructions were given within the two-month period. Accordingly the Secretary of State was bound to give fresh directions himself under paragraph 10, which he never did. The point is extremely technical, since the Secretary of State can give fresh directions under paragraph 10 at any time, provided of course he exercises his discretion afresh. I am to some extent comforted by the thought that he would in any event have to give fresh directions, since the March 1987 directions have long since lapsed. The only difference in the end is who has to pay for the return journey. Nevertheless, the naked issue remains for our decision, whether the March 1987 directions were lawful or not. For reasons I have given, I must reluctantly hold that they were not. The appeal must therefore be allowed.

Judgment Two:

MUSTILL LJ: I agree, albeit with some reluctance. We have here a person who has been in the United Kingdom for nearly two years without any right to be here. In spite of that, he has not voluntarily removed himself. The only reason why he was not removed by compulsion long ago is because the administration thought fit to give him some extra time so that they could make sure that it was right to remove him. He now resists attempts to make him do compulsorily what he should have done voluntarily by reliance on a breakdown in the machinery which is primarily intended to protect the carrier rather than the individual. Everything had been done here to put the carriers on notice that they had brought in someone who was not entitled to enter and that they would be held responsible for removing him, and that was done well within the stipulated period of two months. Any inquiries which the carriers might have wished to make could therefore have been promptly put in train without any risk of their being impeded by lack of time. In spite of this, I think that the technical objection taken by Mr Barstow in his able argument is entitled to succeed. I approach the matter in this way. The purpose of paragraph 8(1)(b) is to empower and require the owners of the specified or indicated aircraft to take the person on board that aircraft whether he likes it or not and whether they like it or not. In the absence of any relevant direction under the other provisions of paragraph 8(1) or under paragraph 10, the owners of an aircraft are entitled, whenever a person is tendered by immigration authorities for compulsory carriage on one of their outbound flights, to scrutinise the direction made by the immigration officer, and, if they find that the aircraft is not the one specified or indicated in the direction, to refuse to accept that person on board. In the present instance, three directions or purported directions have been brought to the attention of the court. The first required the carriers to convey the appellant to Delhi on Flight BA003 leaving on 30 August 1986. The second direction required the carriers to convey him to Nairobi on Flight BA067 leaving on 27 September 1986. The second direction was plainly intended to supersede the first. If the applicant had been tendered for carriage on BA067 on 27 September 1986, the carriers would have been bound to accept him. If he had been tendered on any other flight, they would not have been bound to accept him, and the fact that two perfectly valid directions had been given within the time limit would have made no difference. Then one comes to the third direction. If the present proceedings had not intervened, the appellant would no doubt have been presented to British Airways at Heathrow on 26 March, 1987 for conveyance on Flight BA147 to Delhi. Two questions would then have arisen. First, whether the aircraft specified in the direction was the one for which the appellant was presented, and the answer would have been "Yes". Second, whether the direction was given within two months of the date when he was refused leave to enter, and the answer would have been "No". It would still have been "No" however many valid but unutilised directions had been given within the prescribed time. The argument for the Secretary of State involves reading paragraph 8(2) as if it were subject to one of the following implied qualifications: either, "unless the immigration officer has already given directions under this paragraph within the said period of time", or, "unless the immigration officer has already given notice within the said period of time to the owners or agents of the specified or indicated ship or aircraft of his intention to give such directions in the future". Perhaps it would have been sensible and consonant with the general policy of schedule 2 for Parliament to have included one or other of these qualifications. But it did not, and I can see no ground upon which we could be justified in filling the gap. Precisely the same conclusion will apply to any direction which the immigration officer may purport to give after the conclusion of this appeal. The information in the document which serves to specify the aircraft would certainly differ as to date and may very well differ as to flight number and destination from both of those given within the time limit. Like my Lord, I am unable to regard this as a variation of the original direction, even on the assumption that it is permissible to vary outside the time limit a direction previously given within it. In truth, it was a quite new and different direction which falls foul of paragraph 8(2). Accordingly I too would allow the appeal.

Judgment Three:

HOLLINGS J: I agree with both judgments, and would only add this. In my judgment, paragraph 8(2), relating to the time limit of two months, is plainly intended to put a term to the carrier's obligation to remove the illegal immigrant at the carrier's own expense under pain of criminal prosecution under section 27 of the 1971 Act. If the Secretary of State or his officers give extra time, as they did in the present case, that giving of extra time should not, in my judgment, be at the carrier's expense, and that is the intention of the regulation which is the subject matter of this application. Under section 10(2) provision is made in those circumstances for the carrier's expenses to be defrayed by the Secretary of State. Accordingly, I agree that the appeal should be allowed.

DISPOSITION:

Appeal allowed leave to appeal to the House of Lords refused.

SOLICITORS:

Belmont Craymer, Hitchin; Treasury Solicitor.