UCHE v SECRETARY OF STATE FOR THE HOME DEPARTMENT
COURT OF APPEAL (CIVIL DIVISION)
 Imm AR 252
Hearing Date: 19 December 1990
19 December 1990
Illegal entrant -- previously enjoyed indefinite leave -- application for entry clearance as visitor and assurance to immigration officer that only visit intended -- subsequent application, as always intended, in United Kingdom for indefinite leave as returning resident -- whether material deception -- whether Secretary of State justified in treating applicant as illegal entrant, Immigration Act 1971 s 26(1)(c): HC 169 paras 17, 57, 92.
Judicial review -- decision to treat applicant as illegal entrant -- duty of court following Khawaja to enquire into facts -- whether in consequence leave to move should always be granted to allow issues of fact to be fully investigated.
Held:Renewed application (following dismissal by Macpherson J) for judicial review by Nigerian citizen whom the Secretary of State had concluded was an illegal entrant on the basis of material deception of a visa officer and an immigration officer. The applicant had enjoyed indefinite leave when she returned to Nigeria in 1978. She had applied for a visa as a visitor: on arrival at Heathrow in 1988 she was ultimately granted leave to enter, although the immigration officer was clearly unsatisfied, initially, as to her intentions. Subsequently she applied for indefinite leave as a returning resident: she admitted, during interview, that she had always intended to seek renewal of her indefinite leave. The Secretary of State concluded there had been material deception and treated the applicant as an illegal entrant. It was argued by counsel that if the applicant had told the immigration officer the truth she would not inevitably have been refused leave to enter. She could have been given limited leave and told to apply to the Secretary of State, under the rules, for a variation of leave. It followed that the deception was not material. It was further submitted that in cases involving illegal entrants where the court had a duty to enquire into the precedent facts, leave should always be granted so that factual issues might be explored at a full hearing. Held: 1. On the facts, it was clear that the applicant would not have been granted leave to enter if her true intentions had been known. The deception was material. 2. Notwithstanding the obligations laid on the court by Khawaja, it was still necessary for an applicant for judicial review to satisfy the court, at the stage of seeking leave to apply, that there was an arguable case. Leave did not have to be granted in every case. 3. On the facts, the applicant's case was unarguable.
Cases referred to in the Judgment:Khawaja v Secretary of State for the Home Department  AC 74:  Imm AR 139. R v Secretary of State for the Home Department ex parte Ubakanwa Uche (unreported, QBD, 26 October 1990).
Counsel:E Cotran for the applicant; Miss A Foster for the respondent PANEL: Staughton, McCowan LJJ, Sir John Megaw
Judgment One:MCCOWAN LJ: This is a renewed application for leave to apply for judicial review of a decision of an immigration officer dated 8 June 1990 declaring the applicant of an illegal entrant, and of a notice dated 20 June 1990 for her removal to Nigeria on 18 July 1990. Her application was originally dismissed by Macpherson J on 26 October 1990 after hearing argument by Mr Cotran for the applicant and counsel for the respondent, the Secretary of State for the Home Department. The applicant gave an account of what happened to her in an affidavit sworn in support of her application on 13 July 1990. She is a citizen of Nigeria, one learns from that affidavit. She came to the United Kingdom first with her husband in 1972. She says they then stayed until 1978. Both of them were given indefinite leave to remain in the United Kingdom in September 1975. They have a house at 61 Elswick Road, London SE13. While they were in this country two daughters were born to them, who are British citizens. They went back to Nigeria in 1978, but decided to keep their house in England. Shortly after they returned to Nigeria a third child -- a son called Patrick -- was born. He is a Nigerian and travels on the applicant's Nigerian passport. She paid visits to the United Kingdom, of a few days duration in each occasion, in 1982 and 1984. She had indefinite leave to remain in the United Kingdom until 1978. Whenever they came she stayed at Elswick Road. She says that in 1988 she heard there was a problem regarding that house, namely that people staying there who had no right to stay, gas bills were not being paid and the gas supply had been cut off. This worried her and she decided to come and resolve the problem. By that time she had become matron of the general hospital in Port Harcourt in Nigeria and she applied for leave to come to England for the purpose that I have mentioned. She was advised that, since she had been absent from the United Kingdom for over two years, her right to permanent residence had expired and she needed leave to enter. She obtained a visa from the British High Commission in Lagos and arrived in the United Kingdom with her son Patrick on 31 December 1988. She was questioned extensively at the airport, but eventually was given a temporary admission until 11 January 1989, pending further enquiries. On 11 January she returned to the airport and was given a six months stay. As she found her house in a dreadful condition, she decided she wanted to stay here, put it in good shape and try to re-establish her permanent residence in the United Kingdom. After consultation with her husband on the telephone, they decided that their daughters should come to the United Kingdom to finish their education and they had arrived by 15 January 1989. On 19 January 1989 she applied to the Home Office to restore her permanent residence. By 1 April 1989 she was writing to the Port Harcourt Hospital resigning her appointment as matron. On 9 February 1990 she was asked to the immigration office and was there subjected to a lengthy interview. On 8 June 1990 she was asked to go again to that office and was handed a "Notice to an Illegal Entrant" telling her that the immigration officer was satisfied that she was an illegal entrant. On 20 June 1990 directions were made for her removal to Lagos on 18 July 1990. The immigration department set out its reasons for so acting in a letter dated 12 July 1990. I only need to read one paragraph of this to which reference was made by Mr Cotran. This reads: "On 9 February 1990, Mrs Uche was interviewed under caution. She admitted that her real intention on arrival had been to seek the reinstatment of her resident status but said that she had not revealed this to either the visa officer or the immigration officer on entry for fear of refusal. Had the examining officer known the truth he would have been bound to set aside the visit visa and refuse her leave to enter. She is therefore an illegal entrant." The reasons are more fully set out in an affidavit sworn on 24 October 1990 by David Palmer, a civil servant in the office of the Treasury Solicitor. Why it had come about that he made this affidavit and that the respondent was represented before Macpherson J (as he has been today before us) was because on 3 September 1990 Otton J had adjourned the application to see whether the Home Department was minded to restore the applicant's indefinite leave to remain in the United Kingdom. By letter of 17 September 1990 the department indicated that it was not so minded. The relevant parts of Mr Palmer's affidavit are these: "3. Her two daughters who were born in this country are British citizens and are free to come and go as they please. Patrick is only 11 years old and it had been assumed that he will wish to stay with his mother and will accompany her if she leaves this country. If, as the Secretary of State proposes, Mrs Uche is removed to Nigeria all three children will be given the opportunity of travelling with her at public expense." I then turn to paragraph 6: "The Applicant had on 22 August 1988 successfully applied to the British High Commission in Lagos for a visa for a single visit. I now produce and exhibit hereto marked DP2 a copy of the application form bearing on its fourth page the visa officer's manuscript notes. The notes read: 'Accompanying husband. Nurse in Rivers State Health Department. One month leave. Not resigned. Will not seek to work in the UK. Going alone minus kids. Leaving five children in Nigeria. Previously resident but no longer. @5,000 Lloyds account. Issue single visit x 6' (means visa to be valid for use within six months of issue. The Applicant did not travel immediately and on or about 20th December 1988 her son Patrick made an application for a visa to enable him to accompany her on her visit. That application was granted. Also at exhibit DP2 is a copy of Patrick's visa application form. 7. The Applicant and her son arrived at Terminal 1 Heathrow Airport on 31st December-1988 . . ." I need not read the rest of that paragraph. Paragraph 8: "The reports indicate that a baggage search on her arrival revealed that the Applicant had brought with her all her nursing certificates and this was a matter which cast doubt on her stated intention only to visit the United Kingdom for a short period. On learning of Immigration Service records, which showed that her house in the United Kingdom was connected with a number of persons who had been refused leave to enter this country, she sought leave to enter the United Kingdom indefinitely." The paragraph goes on to say that: "On return from temporary admission, on 11 January 1989 the Applicant was further interviewed . . . she wished to stay here only for a maximum of three months in order to get the house back into order and to arrange a more satisfactory tenancy. She emphasised her ties in Nigeria, the good job she had there, the fact that she was a Parish Councillor and Chairwoman of the Women's Institute and that her husband and four other children were there. The immigration officer who interviewed her on 11 January was in the end satisfied that the Applicant did indeed intend only a visit to the United Kingdom and with the authority of a chief immigration officer granted her and Patrick leave to enter for six months with a prohibition on employment (the normal conditions of entry for a visitor). 10. Just a week or so later, on 19 January 1989, the Applicant wrote to the Secretary of State seeking 'resident status'. A copy of her letter is exhibited marked UJU3 to her affidavit in these proceedings. 11. After pursuing a number of enquiries the Secretary of State decided that the Applicant should be interviewed and this was carried out on 9 February 1990. I now produce and exhibit hereto marked DP4 a copy of the immigration officer's manuscript record of that interview set out in question and answer form. The Applicant was cautioned before the interview commenced and at the end signed each of her answers as a correct record." Looking at that exhibited record, the following seem to me to be the vital questions and answers: "Q. When you arrived in the UK how long did you say that you would stay.? A. Three months for a holiday . . . Q. Did you intend to go to the Home Office to seek to regain your resident status? A. I did . . . Q. Why didn't you tell the visa officer that you intended to seek back your resident status? A. I didn't think I could do it from Nigeria . . . Q. Why didn't you tell the immigration officer that you wanted to return to your resident status? A. I was completely put off by the questions they were asking me about the people at my address and I got confused." Returning to Mr Palmer's affidavit in paragraph 12 he says: "In the light of the above the Secretary of State has concluded that the Applicant obtained leave to enter on 11 January 1990 by deceiving both the visa officer and the immigration officer as to her true intentions. Accordingly she entered in breach of Section 26(1)(c) of the Immigration Act 1971 as amended and is an illegal entrant liable to removal to Nigeria pursuant to paragraphs 9 and 10 of Schedule 2 to the 1971 Act as amended." In his judgment on this application Macpherson J said at page 2F of the transcript: "Mr Cotran quite rightly says that in many cases, and he quotes the case of Khawaja, the question of deception should be investigated by the court. But in my judgment, in this particular case, there is really nothing at all to investigate because this lady has admitted under caution exactly what is set out in the July 1990 letter of the Immigration and Nationality Department, namely that she came here saying that she wanted simply to come as a visitor because she feared that she might be refused entry as somebody seeking to re-establish her residential status. In those circumstances it is my judgment that the contention in this case is unarguable, the contention being that at least the matter should be delayed so that the Home Office affidavit could be answered." In fact on 1 November 1990 the applicant did swear a further affidavit and that has been before the court. In paragraph 3 of that affidavit she says: "In fact, I did not intend nor did I in fact, deceive anybody. 4. As stated in paragraph 7 of my first affidavit I did hear that there was a problem regarding our house in London and this is what led me to apply to come for a visit to solve the problem. I did not, however, know the extent of the problem until I saw for myself the condition the house was in on arrival (see paragraph 12 of my first affidavit). 5. That is why I applied only for a visitor's visa in Nigeria. I certainly did not deceive the visa officer in any way. 6. Nor did I deceive the Immigration Officers on arrival (31.12.1988) or on 11.1.89 when I returned for re-interview. What I did tell them and this is reflected in their reports is that I had many responsibilities in Nigeria which I could not forego to stay in the UK indefinitely. However, the problem of my house required a longer stay than merely a short visit. 8. I believe that the Home Office have misinterpreted this application to mean that I had deceived them earlier. The fact is that two of our children are British citizens. We want to have two (2) homes -- as we do -- one is in Nigeria and one is in the UK. The restoration of my residential rights is not tantamount to wanting to stay 'indefinitely', but gives me many advantages which I would not otherwise have whenever I wanted to be in the UK rather than in Nigeria." The suggestion she there makes in paragraph 8 is not easy to square with her writing to Port Harcourt Hospital on 1 April 1989 resigning her appointment as matron. It is to be noted also that she gives no explanation of why she brought all her nursing certificates with her to the United Kingdom on 31 December 1988 if she had not already formed the intention to stay here. I do not think there can be any question of misinterpretation here. There is no suggestion that she does not speak and understand English perfectly well. In my judgment there is an overwhelming case that she did deliberately deceive the immigration officer who was suspicious of her intentions, but was in the end persuaded to let her enter on her assurances that she only wanted to stay for a few months as a visitor. In truth her intention was to stay permanently and had he known the truth he would have refused her entry. Hence the deception was the effective cause of the grant of leave. Mr Cotran has drawn our attention to the terms of paragraph 92 of HC 169 which reads: "Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused, provided he applies before the time limit on his stay expires." Mr Cotran argues that if his client had told the truth the immigration officer could have granted her temporary leave and explained to her that her proper course was to apply to the Home Office for a variation of the leave he had given. This leads him on to argue that, if she told a lie, it was not material because it was not the effective cause of granting leave. I cannot agree with that proposition. As I have indicated, it seems to me quite plain that it was that lie which caused this suspicious immigration officer to be persuaded that she truthfully only wanted to stay for a few months as a visitor. Had it not been for that he would have refused her entry and therefore it was material. I appreciate that, by reason of the House of Lords decision in Khawaja  AC 74, it is for the executive in a case of this nature to prove to the satisfaction of the court, on a high degree of probability, that the applicant had obtained leave to enter by deception. I do not however accept what seems to me the logic of Mr Cotran's argument that in every case where the executive decides that an applicant has obtained leave by deception, leave must be given, leaving it to the court to decide, on the hearing of the application for judicial review, whether the executive has discharged the burden on it. It is still necessary in my judgment, at the stage of seeking leave to apply for judicial review, for the applicant to satisfy the court that she has an arguable case. I agree with Macpherson J that this applicant's case is unarguable. In those circumstances she should not be given leave and I would refuse her application.
Judgment Two:STAUGHTON LJ: I agree.
Judgment Three:SIR JOHN MEGAW: I agree.
SOLICITORS:Toppin & Co; Treasury Solicitor.
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