Rahim Miah v. Secretary of State for the Home Department

Rahim Miah v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1990] 2 All ER 523, [1990] 1 WLR 806, [1989] Imm AR 559

Hearing Date: 12 July 1989

12 July 1989

Index Terms:

Illegal entrant -- minor admitted with 'parents' before 1 January 1973 -- false representation as to parentage -- false statements repeated in passports subsequently issued to him as an adult and on which he had secured re-entry to the United Kingdom -- whether Secretary of State entitled to treat appellant as illegal entrant -- whether it had been shown that appellant aware, at the time, of the initial deception -- whether subsequent deception on later re-entry would have justified refusal of leave to enter. Commonwealth Immigrants Act 1962 s 4(3): Immigration Act 1971 ss 3(4), 26(1)(c), 33(1), 33(2), 33(2A), 34(2): HC 169 paras 56, 76.

Judicial review -- illegal entrant -- whether the Court grounds for a decision may be relied on which did not form part of the grounds on which the original decision to treat appellant as an illegal entrant was based -- approach by the Court in such cases distinguished from general approach on Wednesbury principles

Held:

Appeal from Macpherson J. The appellant was a citizen of Bangladesh who entered the United Kingdom in 1970 with his "parents", when aged thirteen. That same parentage was recorded in passports later issued to him as an adult and on which he travelled when subsequently granted leave to re-enter the United Kingdom. In 1985 the Secretary of State discovered that the appellant was not the son of those previously asserted to be his parents. The Secretary of State accordingly treated the appellant as an illegal entrant. An application for judicial review was dismissed. On appeal, the Court, approaching the case on the basis of Khawaja, considered the effect of the original deception to secure entry clearance and the subsequent deceptions by production of a passport giving false parentage. It was argued inter alia that the immigration officers who took the original decision that the appellant be treated as an illegal entrant, had not based their decision on the consequence of the later deception and that could not therefore be pleaded before the Court. Held 1. Applying the principles laid down in Khawaja the Court was satisfied that the Secretary of State had discharged the burden of proof of showing that the appellant knew, on his first admission to the United Kingdom that deception was being practised, albeit he was a minor. He was not therefore lawfully settled in the United Kingdom before 1 January 1973. 2. Even if he had been aware of that deception at the time, he was aware subsequently of the false representations in his passport, which representations would have justified refusal of leave to enter under paragraph 76 of HC 169, even if paragraph 56 of the rules had been satisfied. That subsequent deception accordingly also justified the Secretary of State's decision. 3. In that regard, it was not relevant that in the original decision to treat the appellant as an illegal entrant, no reliance had been placed on paragraph 76. In cases of illegal entrants the Court was concerned with finding the facts and then applying the law to them: it followed that it could entertain new grounds not previously pleaded. Such cases were not approached on Wednesbury principles. 4. The Court alluded to the case of Khan in which an appellant had been unaware of the deception practised on her behalf, but found it unnecessary to decide in this case, whether Khan was a binding precedent.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Khan [1977] 1 WLR 1466: [1977] 3 All ER 538. R v Secretary of State for the Home Department ex parte Zamir [1980] AC 930: [1979-80] Imm AR 203. R v Secretary of State for the Home Department ex parte Aurang Zeb and Azmat Parveen (DC, unreported, 7 December 1983). Khawaja v Secretary of State for the Home Department [1984] 1 AC 74: [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte Rahim Miah (QBD, unreported, 26 July 1988).

Counsel:

I Macdonald QC and G Haque for the appellant; G Sankey for the respondent PANEL: Fox, Woolf, Butler-Sloss LJJ

Judgment One:

WOOLF J: This is an appeal from a decision of Macpherson J given on 26 July 1988 when he dismissed an application of the appellant Rahim Miah for judicial review of a decision of the Secretary of State to remove the appellant from this country on the basis that he is an illegal entrant. The issue which arises on this appeal is as to circumstances in which a child who was given leave to enter this country can be removed as an illegal entrant as a result of a deception practised by others when he entered this country. The appellant was born either on 15 May or 10 June 1957 in Bangladesh. The earlier date is the date which appears in three passports. The later date is the date which he gives as being his birthday. For the purposes of this appeal I will assume that in fact the later date is the correct date, so that when he came to this country in circumstances, to which I will refer in a moment, he was 13 years of age. The appellant was granted entry clearance in 1970. The entry clearance was granted to him on the basis that his father was Motahir Ali and his mother Rabia Khatun. In fact he was not their son and undoubtedly an arrangement had been made between his real parents and those indicated in the entry clearance as being his parents for the purpose of his obtaining access to this country. On 12 December 1970 he arrived in this country and, as the son of Motahir Ali, he was granted indefinite leave to enter this country. He had a passport at that time, but was subsequently granted a further passport on 3 September 1973, which passport also described his father as being Motahir Ali. Using that passport he travelled to Bangladesh on 10 December 1975 and returned to this country on 19 April 1977. Whilst in Bangladesh he had married and in fact he had two children by his wife. His wife and the two children have remained in Bangladesh. Having returned to this country in April 1977, he went back to Bangladesh in April 1978 and returned to this country in June 1979. He again returned to Bangladesh in December 1982, and while in Bangladesh he obtained another new passport which also described his father as Motahir Ali. Using this passport, he returned back to this country on 24 December 1983. After his return to this country on that date he remained here. In October 1985 he was interviewed by an immigration officer. According to the record of that interview and a statement he made during the interview (which was conducted with the assistance of an interpreter who was a friend of the appellant), he made certain admissions. In particular, according to the statement which he signed, he made an admission about what happened with regard to his original entry into this country. With regard to that he said: ". . . I entered the United Kingdom on 12 December 1970 accompanied by Rabia Khatun the wife of Motahir Ali. I had been told by Rabia Khatun and by my true father Haji Mohamed Abdul Hashim to say that Rabia Khatun was my mother and that Motahir Ali was my father. I knew this to be false but I was young and had to obey my elders". With regard to what happened thereafter, he added this: "I have since applied for and been granted two passports both of which give my father's name as Motahir Ali. Using these passports I have travelled to Bangladesh three times and was admitted to the United Kingdom on the last occasion on 24.12.83. On that occasion I told the Immigration Officer that I was legally resident in the United Kingdom when I knew that I was not. However I had no alternative since I knew that if I told the truth on that occasion I would have been refused entry to the United Kingdom. I have known for some time that it is wrong to continue to pretend that my father is Motahir Ali and I now wish to state that my true father is Haji Mohamed Abdul Hashim and that my true mother is Auladun Nessa". It was as a result of that interview that he was served with a notice on behalf of the Secretary of State treating him as an illegal entrant. In the court below a number of arguments were advanced on behalf of the appellant. But in this court, Mr Macdonald, who has represented the appellant with considerable skill and ability, has advanced on his behalf only one submission although there are consequences which flow from that submission which affect the whole of this appeal. This submission is that the Secretary of State has failed to prove that the appellant was an illegal entrant when he arrived in the country in 1970. That submission is based upon the fact that when the appellant arrived in this country he would have been, as I have indicated, 13 or 13 1/2. Mr Macdonald submits that the evidence which was before the learned judge on the hearing of the application for judicial review was not such that he was entitled to find that at the time of entry the appellant was an illegal entrant. If Mr Macdonald is right in that submission, then he contends that the Secretary of State has no power to remove the appellant. It is undoubtedly right that unless the appellant is an illegal entrant, then the Secretary of State has no power to remove him. The powers of the Secretary of State are confined to those set out in paragraphs 8 to 10 of the second schedule of the 1971 Immigration Act and those powers are dependent upon it being established that he is an illegal entrant. Who is an illegal entrant is defined by section 33 of the 1971 Act. That section in subsection (1) provides: "for the purposes of this Act, except in so far as the context otherwise requires --

. . .

. . . 'entrant' means a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes a person who has so entered; . . ." In the case of R v Home Secretary, ex parte Khawaja [1984] AC 74 Lord Bridge of Harwich explained the importance of that definition in relation to the powers of the Secretary of State to remove illegal entrants. At p 118 Lord Bridge said as follows: "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 limitation that applies 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 . . ." And then he refers to the earlier case of R v Secretary of State for the Home Department, ex parte Zamir [1980] AC 930. What Lord Bridge said in Khawaja was in reference to the 1971 Act, and he was making reference to section 26(1)(c) of the 1971 Act which provides: "A person shall be guilty of an offence punishable on summary conviction, . . . in any of the following cases --

. . .

(c) if on any such examination 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 return, statement or representation which he knows to be false or does not believe to be true; . . ." The reference to "such examination" refers back to (a) and (b) of the same subsection, and when those subsections are looked at it does appear that the examination referred to in section 26(1)(c) is an examination by an immigrant who is seeking leave to enter the country. The 1971 Act did not come into force until January 1973, and at the time of the appellant's entry into this country the Act in force was the 1962 Commonwealth Immigrants' Act. That Act in section 4 creates an offence by subsection (3): "If a person . . . -- (a) makes or causes to be made to any immigration officer or other person lawfully acting in the execution of this Part of this Act any return, statement or representation which he knows to be false or does not believe to be true; . . ." The provisions of that Act which were applicable at the time that the appellant entered this country are applied to the 1971 Act by a combination of a number of different provisions. First of all, in section 33(1), to which I have already made reference, "immigration laws" which is referred to in the definition of "illegal entrant" is defined as meaning: ". . . this Act and any law for purposes similar to this Act which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom and Islands". Section 34(2) provides: "Without prejudice to the generality of subsection (1)(a) and (b) above, a person refused leave to land by virtue of the Aliens Restriction Act 1914 shall be treated as having been refused leave to enter under this Act, and a person given leave to land by virtue of that Act shall be treated as having been given leave to enter under this Act; . . ." And then there follow these important words in the context of this case: "and similarly with the Commonwealth Immigrants Acts 1962 and 1968". The original entry of the applicant is focused upon by Mr Macdonald in his argument, although the applicant has left the country on a number of occasions since and thereafter returned. He contends he can rely on rule 56 of the immigration rules, to which I will refer in a moment. That rule is important, since section 3(4) of the Act provides: "A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; . . ." In this case, every time the appellant left the country, because of the effect of sub-section (4) of section 3, on returning to this country on any view of the facts he required leave to enter. However, Rule 56 of HC 169 provides: "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 2 years preceding his return, is to be admitted for settlement . . ." Accordingly, if the appellant was settled here, he would be entitled to take advantage of that rule. As he was never absent for more than two years he would be entitled to be admitted under the provisions of that rule subject to what I have to say hereafter. The reason why Mr Macdonald addressed his submissions in the way that I have indicated was because he contends and in my view correctly contends that the effect of rule 56 is that if it applies he can establish that the rule entitles his client to be re-admitted to this country under the terms of that rule, and if there was a deception practised by him on the occasions when he sought to come back to this country after he had already settled here, that deception would not be effective. The reference to a person who is settled here takes one back to the provisions of section 33 of the Act, subsection (2) of which section provides: "It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws". Section 2(A) provides: "Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain". Mr Macdonald contends that if the appellant was not, when he originally entered, in breach of the immigration laws, then he became ordinarily resident, he accordingly became settled and could take advantage of those provisions of section 33. That being so, he contends that under rule 56 his client was entitled on each return from Bangladesh to be granted leave to enter under rule 56. Turning back to the facts, the first submission which is advanced by the respondents to this appeal is to the effect that the evidence which was before the judge entitled him to come to the conclusion that the appellant, albeit he was only 13 or 13 1/2 years of age, was a party to the deception which was practised. A similar situation to that described in this case was considered before the Divisional Court in the case of ex parte Aurang Zeb and Azmat Parveen on 7 December 1983. That case differed from this case in that the young man, who was of similar age to the young man who is involved in this case, was travelling on his own. However, in my judgment in that case I said at p 5 with regard to the arrangement that was being adopted: "It was essential that he [the applicant] was so aware [of the fraud that had been practised] if he was to achieve the object of the arrangements that were made. It would be known that he would be interviewed and would have to pass himself off as having the identity of the other young man. In my view it is inconceivable that that could happen if he had not been made aware of the nature of the deception which had to be practised. On that matter I have no doubt that the Home Office would be entitled to take the view that despite his years he was in fact a knowing party to the deception". In cases where it is alleged that an immigrant is an illegal entrant there is a heavy burden upon the Home Secretary to establish before the court the necessary facts justifying the court concluding that the immigrant is an illegal entrant, and the standard of proof which is required of the court is one which is greater than normal. In the case of Khawaja Lord Bridge described the standard in these terms at p 124: "[The authorities] have led me to the conclusion that the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud, which has to be made out, and the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree". Approaching this case bearing in mind that standard indicated by Lord Bridge, I have come to the conclusion that it is quite impossible for this court to take any view other than that which was adopted by Macpherson J in the court below. Although unlike the earlier case of ex parte Aurang Zeb and Azmat Parveen (supra) the appellant was being accompanied, it seems to me that it was still essential that he should be fully tutored about the role that he had to play. According to the statement, to which I have made reference earlier, he said that he knew that role. With regard to that statement, in his affidavit he indicates that the friend who was acting as his interpreter was an unsatisfactory interpreter and that he must have expressed himself in a way which was not in accord with what the appellant was saying. However, when one looks at the statement as a whole, that explanation of the statement I regard as wholly inconsistent with the appellant being innocent at the material times, it is not one which could be explained merely by some incompetency on the part of the interpreter. The statement hangs together. It describes a sequence of events and, what is more, contains a great deal of material which, on any view of the facts, is undoubtedly accurate. Looking at the evidence as a whole, even bearing in mind Mr Macdonald's submissions on the appellant's behalf, I have no doubt that the learned judge's decision cannot be faulted in regard to his conclusion that the appellant was in fact knowingly a party to deception when he came into the country at the age of 13. That means that the whole of the structure which Mr Macdonald has built falls at the first hurdle, that he cannot create the necessary factual basis for his subsequent submissions. However, having regard to the important issues which are raised by his subsequent submissions I perhaps should and I propose to deal shortly with them. First of all, on the assumption that the appellant was not party to the deception, and there was no more here than what has been described in the course of argument as a "third party" deception, it is argued on behalf of the Secretary of State that it is not possible to approach the matter exclusively having regard to rule 56 to which I have already made reference. It is contended, and in my view correctly contended, that in addition to rule 56 it is also necessary to have regard to rule 76. The relevant part of rule 76 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 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. . . ." In this case, so far as obtaining an entry clearance is concerned, there was undoubtedly deception practised. Assuming that it was without the knowledge of the appellant, it would still fall within the language of rule 76 to which I have made reference. That deception would only be a matter of background when the appellant first obtained leave to enter and it would remain a matter of background when he returned to this country subsequently, after visiting Bangladesh. However, it is clear that on those subsequent visits he was a party to the deception. He was not then a young teenager. He was older. He knew that he had a passport which misdescribed his father. He knew that it was in that sense a false passport, and he was then knowingly involved in deceit. If that deceit had not been practised, then the immigration officer would have had to consider whether the circumstances were such as to entitle him to override the specific provisions of rule 56 on the basis of the general provisions of rule 76, which I have cited, including the examples, and I emphasise the word "examples", set out in that rule. In my view the wide discretion which is given to the immigration officer under rule 76 would have been sufficient for him to come to the conclusion that, because of the deceit which was originally practised which led to the immigrant obtaining his original leave, even on the assumption that he was not a party to that deception, would have entitled the immigration officer taking into account the facts which occurred thereafter to come to the conclusion that he should refuse leave to enter. That being so, it follows that the deceptions which were practised by the applicant each time he came back to this country were effective so far as his obtaining entry into this country were concerned. They would clearly be deceptions which fell within the description of the sort of circumstances described by Lord Bridge which result in a person being an illegal entrant. Therefore, on that basis as well, I would come to a conclusion adverse to the appellant. The third matter that I should deal with, which was relied on by the respondent, relates to the case of R v Secretary of State for the Home Department, ex parte Khan [1977] 1 WLR 1466. In that case, which was decided before the Khawaja case, this court gave two grounds of decision, one of which is here relevant which has to the effect that a deception by a third party could render a person an illegal entrant, albeit that he was not a party to that deception. The case of Khan was cited to the House of Lords in Khawaja, and at p 119 Lord Bridge said this about that case: "Finally, I would wish to leave for consideration on a future occasion the difficult questions that may arise when leave to enter has been obtained by fraud of a third party, but the person entering had no knowledge of the fraud. I am not convinced that R v Secretary of State for the Home Department, ex parte Khan [1977] 1 WLR 1466 where it was held that the innocent wife who had obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it is safer to express no present view but to leave such cases to be decided as they arise". Notwithstanding that comment by Lord Bridge in relation to the case of Khan I recognise that it could be argued that the case of Khan is still binding on this court. However, having heard Mr Macdonald's submissions in relation to the case of Khan the conclusion to which I have come is that, as it is possible to decide this case of the basis of the earlier two points to which I have made reference, it is preferable not to express today any final view as to the status of the Khan decision, albeit that I can see considerable force in the logic of the judgment of Megaw LJ in that case. There is just one final matter that I should mention, and that is this. Mr Macdonald in answer to the rule 76 point, which was relied on by the respondent's counsel, Mr Sankey, submitted that the approach which I have indicated earlier in this judgment was not available to the respondent because that was not the way the matter was dealt with by the witnesses who actually came to the decision that the appellant was an illegal entrant. He submits that the matter having been dealt with on one basis by the immigration officers concerned, it is not open to the respondent to advance the matter on a different basis in the course of argument before the court below or before this court of appeal. I do not accept that submission. Uniquely, on an application for judicial review, in a case where the alleged illegal entrant seeks to challenge his status as an illegal entrant, the court has to determine the primary facts to ascertain whether the condition precedent to his removal has been established by the Secretary of State. For that purpose, it forms its own judgment on the facts. It, therefore, does not perform its normal role, which is to review the decision which has been reached by the administrators. Mr Macdonald is not entitled to have it both ways. If he wishes to challenge the immigration officers' decision on the conventional basis, that is to say the Wednesbury basis, then of course he is entitled to do so. But in that situation, all the Court will do will be able to examine the decision and see whether it is one which the officers were entitled to come to. That is an approach which is much less favourable to an appellant immigrant than the approach which is normally adopted. If that approach was adopted in this case, there could undoubtedly be only answer. The immigration officers could not be challenged on a Wednesbury approach. If, however, the court is asked to come to a conclusion itself on the facts, then it is entitled to form its own view of those facts and apply the law to the facts as it found them. That is what has been done in the court below and in this court in this case, and in my view this final submission of Mr Macdonald lacks substance. For those reasons, I would dismiss this appeal.

Judgment Two:

BUTLER-SLOSS LJ: For the reasons given by Woolf LJ I agree that this appeal must be dismissed.

Judgment Three:

FOX LJ: I also agree. Mr Sankey: In those circumstances, my Lords, I ask that the appeal be dismissed. I understand the applicant is not legally aided. Therefore, I ask for the costs of the appeal. Mr Macdonald: My Lord, I would find it difficult to resist that, particularly in view of the rejection by your Lordships of all my submissions but one, on which your Lordships have not given any judgment. There was one other matter that I did wish to state your Lordships, and it is really this. It has no bearing at all on the outcome or the judgment, but in the course of my Lord, Woolf LJ, giving judgment I did recall the conditions of section 1(5) of the Act which at the time this decision was made was still in force; it has since been repealed. But it does mean that the Immigration Rules applying to a Commonwealth immigrant who was settled here in 1973 shall not put that person in any worse position than in 1973. In 1973 there was a statutory right under the Commonwealth Immigrants Act for a returning resident to come back, with no paragraph 76 discretion available to any immigration officer. I should also add that there that argument, of course, is not available to anyone where a decision is taken after the 1988 Immigration Act came into force, and it would not be available to anyone who entered by deception after 1973. But, in case I had allowed the matter to go per incuriam, I thought at this stage, although it has no bearing on the outcome, I ought to mention it. It merely occurred to me, as often these things do, when it was too late to raise it properly in my reply. Woolf LJ: Mr Macdonald, on that you come into the question of who is settled here, which in turn involves who is ordinarily resident. Mr Macdonald: Certainly, my Lord. Woolf LJ: And if a person has entered the country illegally as an illegal entrant, as we found on the first basis of the decision of this court, then the fact that he was here for a substantial time would not mean that he was settled, because he would not be here lawfully. Mr Macdonald: My Lord, I entirely agree with that. On the basis of your Lordship's judgment on the first point, on the factual point, the argument has no bearing at all. But it would have related to the argument on the second point which your Lordship dealt with subsequently. Woolf LJ: I am grateful to you for drawing our attention to that point, which applies to a very small sector of cases. Mr Macdonald: My Lord, I apologise to your Lordships for having omitted what might in other circumstances have been an important part of my reply. It simply did not occur to me when I was making my reply. Fox LJ: Then the appeal is dismissed with costs.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Hafiz & Co, London; Treasury Solicitor

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