Kwadwo Saffu-Mensah v. Secretary of State for the Home Department

KWADWO SAFFU-MENSAH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 185

Hearing Date: 26 November 1991

26 November 1991

Index Terms:

Illegal entrant -- whether it was mandatory for notice of intention to treat a person as an illegal entrant to be served on him as soon as that decision had been taken -- whether by delay and conduct the Secretary of State might be estopped from so treating a person. Immigration Act 1971 ss 26(1)(c), 28, 33(1), sch 2 para 9: HC 169 para 13.

Refusal of leave to enter -- false representations made to obtain visa as visitor -- applicant might have qualified as returning resident under the discretionary rule if he had told the immigration officer the truth -- whether immigration officer was obliged to consider an application in that category -- whether in that regard the position of a visitor could be distinguished from that of a person seeking asylum -- Bugdaycay considered. HC 169 paras 13, 56, 57.

Held:

Appeal from Webster J who had dismissed an application for judicial review of a decision to treat the appellant as an illegal entrant. The appellant was a citizen of Ghana. In his youth he had been a student in the United Kingdom: while a student he married. He then returned to Ghana: his wife, with her children from a former marriage, remained in the United Kingdom. In Ghana the appellant contracted a second marriage. Some years later he applied for a visitor's visa. He stated he wished to visit his cousin in the United Kingdom: that cousin was in fact his first wife. He was granted a visa and subsequently, on the basis of that visa, given leave to enter for six months as a visitor. He then applied for indefinite leave, to remain with his first wife. After investigation the Secretary of State concluded that he had secured entry to the United Kingdom by deception. The Secretary of State decided he was an illegal entrant. The appellant however had been arrested on criminal charges. The Secretary of State refrained from advising the appellant that he was to be considered an illegal entrant until the criminal proceedings had been completed. The immigration officer who had interviewed the appellant in connection with his immigration status gave evidence at the appellant's trial but made no reference to his illegal entry. On appeal it was argued by counsel that it was mandatory for an immigration officer to serve notice on a person that he was to be treated as an illegal entrant, as soon as he had reached that conclusion. It was further argued that the misrepresentations made by the appellant were not material: the immigration officer had not been bound to refuse leave to enter: if the appellant had told the truth he might have secured indefinite leave to enter under the discretionary provisions relating to returning residents. Held 1. The immigration authorities are not required to take immediate steps to procure the summary removal of an illegal entrant at the earliest moment that it is known that there is evidence justifying the conclusion that entry had been obtained by deception. 2. If that had been intended, the Act would have so laid it down, which it did not. Nor could it be argued, by reference to section 28 of the Act, that such an obligation arose by necessary implication. 3. Following Bugdaycay it was irrelevant that if the truth had been told, leave of another kind might have been granted: the test was whether the deception was material to the leave to enter that was granted.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Lapinid [1984] 3 All ER 257: [1984] Imm AR 101. Khawaja v Secretary of State for the Home Department [1984] AC 74: [1983] 1 All ER 765: [1982] Imm AR 139. Dhirubhai Gordhanbhai Patel v Secretary of State for the Home Department [1986] Imm AR 515. R v Secretary of State for the Home Department ex parte Bugdaycay and ors [1987] 1 AC 514: [1987] Imm AR 250. R v Secretary of State for the Home Department ex parte Kwadwo Saffu-Mensah [1991] Imm AR 43.

Counsel:

A Riza AC and J Deve for the appellant; I Burnett for the respondent PANEL: Purchas, Ralph Gibson, Taylor LJJ

Judgment One:

RALPH GIBSON: Mr Kwadwo Saffu-Mensah is the appellant in this case against the dismissal by Webster J on 13 July 1991 of his application in judicial review proceedings to quash a notice dated 12 April 1989 to the applicant that he was an illegal entrant. His illegal entry was made on 6 October 1986. Now, more than five years later, one year and four months after the learned judge upheld the validity in law of the notice, the matter has reached this court. I will say at once that there is, in my judgment, no substance whatever in any of the grounds of appeal put forward. The appellant is now aged 50 and is Ghanaian. He first came to this country in 1965 as a student, and he says that he obtained a qualification as an accountant. In March 1971 he was given indefinite leave to remain in this country. In 1974 he began to cohabit with a woman from Ghana called Comfort Yoboh, who had also been given leave to enter as a student. In 1976 they married in this country. In consequence, she was given indefinite leave to remain in this country and, in 1978, she obtained entry clearance for her three children by a previous marriage who were then in Ghana. In May 1977, however, the appellant had returned to Ghana, where he remained for nine years. He has asserted that his purpose in going back to Ghana was to arrange for the building of a house for his mother. In 1980 the appellant made a second marriage in Ghana to a woman named Rose. On 25 September 1986 the appellant made, to the British High Commission in Accra, an application in writing for a visitor's visa to come to the United Kingdom. He stated on that form that he was married to Rose Saffu-Mensah, that is the woman he married in Ghana in 1980; that the purpose of his journey to the United Kingdom was for a visit; that he proposed to stay one month, that he had previously stayed in the United Kingdom from 1965 to 1977; and that the persons in the United Kingdom he wished to join or visit included Comfort Yoboh, whom he described not as his wife but as his cousin. He also described his occupation as financial controller to a company, ATS Ltd of Accra. The appellant arrived at Gatwick Airport on 6 October 1986. He was given leave to enter as a visitor for six months, with employment prohibited. The immigration officer who gave that leave would have asked the appellant the purpose of his visit and the intended duration of his stay. The leave to enter was stamped in his passport, immediately below the stamp signifying the entry certificate granted on 25 September by the High Commission in Accra, pursuant to the appellant's application. The appellant, within a few weeks, joined his wife, Comford Yoboh, in Newcastle-upon-Tyne and, on 21 October of that year, she wrote to the Home Office asking that he be "granted a stay". She sent her and his passport; their marriage certificate; and the grant in 1971 of indefinite leave to him to remain. The Home Office investigated the matter. They discovered the existence of Rose Saffu-Mensah and her two children by the appellant in Ghana. They wrote to him and asked for sight of the marriage certificate in respect of Rose and any evidence of divorce. The appellant replied to the effect that Rose was his second wife and that the marriage to her was still subsisting, but his real wife was Comfort Yoboh in Newcastle. There followed interviews of the appellant and of Comfort Yoboh on 1 April by Mr Moore, an immigration officer, at the North East Regional Airport, near Newcastle-upon-Tyne. The appellant was further interviewed by Mr Moore on 2 April, at which point it seemed to Mr Moore that the applicant might be an illegal entrant, that is to say a person who, by reason of having made false representations within section 26(1)(c) of the Immigration Act 1971, had been guilty of that offence, in particular because the appellant had always intended, on his return in 1986, to remain here permanently and that his assertion of an intention to come here for a visit of a month only was, to his knowledge, false. A further interview was therefore conducted on 5 April 1988 by Mr Moore, after caution, of which contemporaneous notes were made. That interview ended with the following exchange. Mr Moore put it to the appellant that he had deceived both the entry clearance officer in Accra and the immigration officer at Gatwick Airport in order to facilitate his return to the United Kingdom with the minimum of fuss. He replied: "No, sir. I am sorry I did not know the system. I am rectifying what is wrong by applying to the Home Office. Everything I did was honest and in good faith". Following that interview, no action was taken at once with reference to the appellant because of other proceedings. On 23 January 1988 the appellant had been charged with offences of deception with reference to a mortgage transaction, and it was considered by the Home Office that no action should be taken before the trial of those alleged offences had been completed. The trial was in January 1989. Mr Moore gave evidence for the prosecution with reference to the appellant's two marriages and his absence from the United Kingdom. That evidence was relevant to certain of the alleged misrepresentations, or so it would seem. The appellant was convicted on four counts. He was fined a total of @10,000 and ordered to pay @2,000 towards the costs of the prosecution. On 9 April 1989 Mr Moore again interviewed Comfort Yoboh in Newcastle, and the appellant on 12 April. It was on the last occasion that the form, IS 151A -- Notice to an Illegal Entrant -- was served on the appellant. The appellant's application was supported by an affidavit sworn on 7 June 1989. It contained the following assertions, after an account of his first visit to this country and marriage to Comfort Yoboh: (i) In September 1986 he obtained a visitor's visa to come to this country. He had not applied for a visa to join his wife because he did not know whether she had another man in her life or would accept him back. (ii) On arrival at the airport the immigration officer had asked him only about money, and no other questions. (iii) At his trial the judge had refused to make a recommendation for deportation, and Mr Moore (the immigration officer) had told the court that, although the appellant had been away from the United Kingdom for more than two years, his application as a returning resident could be favourably considered because his wife was settled in the United Kingdom. Mr Moore had said nothing to the effect that he was an illegal entrant. (iv) On arrival he had answered truthfully all questions put to him. The grounds, settled by Mr Deve of counsel, contained the assertion that the officer was "wrong to serve the two notices of 12 April 1989" and that, in serving them, the immigration officer "had acted contrary to the rules of natural justice". The matter came before Webster J in July 1990. He made the following rulings and findings in the course of, and after, a full and detailed examination of the evidence: (i) The entry clearance officer in Accra, to whom the representations were made to obtain the entry certificate, was a person lawfully acting in the execution of the 1971 Act for the purposes of section 26(1)(c). (ii) The test to be applied, so far as concerned the correctness of the Secretary of State's decision on the facts, was that described in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765. He cited the headnote in terms to which no submissions have been directed. It is the reference to being satisfied on the civil standard of proof to a high degree of probability that the facts did in fact exist at the time the power was exercised based upon those facts. (iii) If the appellant, on arrival in this country, had told an immigration officer the true facts, that is to say with reference to his intention to remain in this country with Comfort Yoboh, who was his wife and not his cousin, the immigration officer would have set aside the entry clearance certificate under paragraph 13 of HC 169 and would then either have refused entry outright or perhaps have refused entry while further enquiries were made, perhaps giving limited leave to enter. (iv) He relied upon and applied the passage in the speech of Lord Bridge of Harwich in R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514 at page 525 in which Lord Bridge approved a passage in the judgment of Neill LJ in the same case in this court with reference to the materiality of decisiveness of facts being considered in the context of the leave which was given. Submissions have been directed with reference to that and it will be convenient if I set out at once what is there: "'In my judgment it is impermissible to extend the concept of material facts so as to allow an intending entrant to seek leave to enter for a particular purpose on the basis of a statement of particular facts and then later, on admitting that the purpose had been misrepresented and the facts had been misstated, to contend he was not an illegal entrant because if he had told a different story and had put forward a different reason for his visit he might well have been given leave. The question whether facts are material or decisive has to be answered in the context of the leave which was in fact given. The Act of 1971 makes this clear. Thus the appellants were seeking to enter the United Kingdom by making statements or making representations to the immigration officers which they knew to be false or did not believe to be true. The misstatements or misrepresentations were not on matters of detail but constituted versions of the appellant's intentions which were in fundamental respects at variance with the truth. The decision that these appellants were illegal entrants appears to me to be unassailable'". (v) Similarly, if the appellant had disclosed the true facts of making his application for an entry clearance certificate in Ghana, no entry clearance would then have been given. (vi) The learned judge was satisfied on the evidence, as a matter of high probability, if not certainty, that on return to this country on 6 October 1986, so far as concerns what was said between the appellant and the immigration officer and so far as concerns what was said by the appellant in his application for the entry clearance certificate, the appellant knowingly made false representations, ie it was his intention to return to live permanently with his first wife, if she would have him. (vii) As to the representations to the immigration officer, even if nothing had been done or said, a mere presentation by the appellant to the immigration officer of the passport containing the permission to enter as a visitor would have constituted a false representation of his intention: see R v Secretary of State for the Home Department ex parte Dhirubhai Gordhanbhai Patel [1986] Imm AR 515. On 6 August 1990 legal aid was obtained to pursue an appeal against the decision of Webster J. Such indication as can be gathered from the notice of appeal on the advice on which that further legal aid certificate was obtained is that the grounds, as signed by Mr Deve of counsel, were as follows: 1. The immigration officer, after interviewing the appellant in April 1988, had made a witness statement on 14 July and attended the appellant's trial in January 1989 for the purposes of the prosecution of the appellant. But "failed to disclose to the prosecution authorities that the appellant was an illegal entrant". 2. Since the immigration officer had failed to come to a conclusion in April 1988 that the appellant was an illegal entrant, and no further evidence was available, it would be unreasonable and unjust to accept the decisions of the immigration officer that the appellant could now be treated as an illegal entrant. 3. Ground three contained three points of law: (a) that the judge misdirected himself in holding that the entry clearance officer in Accra was a person acting in execution of the Immigration Act 1971; (b) that the judge misdirected himself in holding that the misrepresentations contained in the appellant's form of application were material; and (c) misdirected himself in holding that the mere presentation of a visitor's visa to an immigration officer could amount to a false representation which would be material. Ground one was abandoned in the outline of argument lodged in May 1991 and signed by Mr Riza and Mr Deve. The points, in my judgment, were entirely unarguable. The judge disposed of them by saying that it would have been improper for the prosecution to elicit from Mr Moore in evidence at the criminal trial the fact that the appellant (there the defendant) was under investigation for a possible offence under section 26 of the Act. Such evidence would have been both irrelevant and prejudicial. Grounds 3(a) and 3(c) were also, and again in my judgment rightly, abandoned in the outline of argument. The allegations of fact as made by the respondent and found by Webster J are expressly accepted as, I would add, was indeed inevitable. That left what are said, in the outline of argument, to be the two issues in the appeal, namely: (1) The time point that it is mandatory for the immigration officer to serve the appellant with a notice treating him as an illegal entrant the moment the immigration officer became satisfied that the appellant had employed deception to effect entry into the United Kingdom; and (2) that the representations found by the judge to have been employed by the appellant were not, as the judge found them to be, material. The first ground was said to be open to the appellant under ground two. But, in fact, Mr Riza applied for leave to amend to make the point and leave to amend was given without objection. The appellant's submissions, on what I have called "the time point", were, in outline, as follows: (i) The appellant's leave to enter the United Kingdom for six months expired on 6 April 1987. Thereafter the appellant was in this country lawfully pursuant to an extension of his leave to remain obtained automatically under the provisions of the Immigration (Variation of Leave) Order 1976. (ii) In the case of ex parte Lapinid [1984] 3 All ER 257 at page 261C/E Browne-Wilkinson LJ (as he then was) held that the words "where an illegal entrant is not given leave to enter" in schedule 2, paragraph 9, are to be read as meaning "where a person known to be an illegal entrant is not given leave to enter . . .". (iii) The evidence from the immigration officer was to the effect that he had material upon which he was satisfied that the appellant was an illegal entrant following his interview on 5 April 1988. (iv) The immigration officer's decision making under paragraph 9 of schedule 2 proceeds in two stages. The first to decide whether or not a person is an illegal entrant and the second to decide whether to give removal directions: see ex parte Khawaja [1984] AC 74 per Lord Wilberforce. (v) It is submitted that, where a person is "permitted" to remain in the United Kingdom notwithstanding that the immigration authorities are aware that he is an illegal entrant it is then not open to the immigration authorities to give removal directions even if the person concerned has permission to remain here by virtue of the Variation of Leave Order. In other words, he is to be treated in the same way as a person who is given leave to enter or remains by notice in writing under section 4(1) of the Act. The argument of Mr Riza was developed further beyond that outlined and I hope I summarise his additions fairly as follows: (i) The basis of illegality of entry in such a case as this rests on the definition in section 33(1) of the Act of an illegal entrant in the following terms: "It means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws". Section 26(1)(c) provides that: "A person shall be guilty of an offence 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 of representation which he knows to be false or does not believe to be true". And, as explained by the House of Lords in ex parte Khawaja, it is because the making of the false representation constitutes an offence under section 26 that the person is to be treated as an illegal entrant, ie a person "seeking to enter in breach of the immigration laws". (ii) Mr Riza drew attention to section 28, which imposes time limits for the prosecution of section 26 offences. It is sufficient to say that thereby the ordinary time limit for prosecution of six months in a magistrates' court is extended to a maximum period of three years after the commission of the offence, provided that it is not more than two months after the date certified by a chief officer of police to be the date on which evidence sufficient to justify proceedings came to the notice of an officer of his police force. (iii) It was submitted that, by necessary implication upon the construction of the Act of 1971 as a whole, the powers in paragraph 9 of schedule 2 must be held to be incapable of exercise at any time after the time limit on prosecution has expired. (iv) In the alternative, it was contended that, if it was not right that there was that absolute time limit, then, by similar necessary implication, the power to remove should only be capable of exercise after that time limit if prompt notice has been given designating the applicant as an illegal entrant as soon as the immigration officer has knowledge of the deception used. The argument was sought to be supported by the contention that paragraph 9, upon the true construction of the Act, is plainly primarily intended for use at a time proximate to the arrival of the alleged illegal entrant into this country. It was said that that concept made much difference to the force of the argument. Mr Riza argued that to accept this submission would have no adverse consequences in the administration of the Act because, it was said, the Minister would be able to proceed by the alternative process of declining to extend leave and moving for the removal of the person concerned as an overstayer. (v) Finally it was argued that we should, on the facts, conclude that Mr Moore (and this was a return to the fifth part of the skeleton argument summary of argument) is to be treated as having "permitted" the appellant to remain in this country by not taking any steps either to designate him or to set in motion the summary removal procedure when Mr Moore, after the interviews, had formed the view that the appellant was an illegal entrant. In order to deal with these submissions, it is necessary to look with some closeness at the decision in the case in ex parte Lapinid [1984] 1 WLR 1269. In that case the applicant had obtained leave to enter by deceit. It was a similar sort of deceit to that in this case, namely pretending to be a visitor, when the intention was to remain permanently with his wife. As appears from the judgment of Browne-Wilkinson LJ (as he then was) in that case, before the decision in ex parte Khawaja [1984] AC 74, it has been established that the effect of obtaining leave by deceit was to render the leave so obtained void or voidable. On that basis paragraph 9 of schedule 2 to the Act of 1971 presented no problem of construction. Paragraph 8, of course, provides that, where a person arriving in the United Kingdom is refused leave to enter, the immigration officer may give directions to the carrier to remove him. Paragraph 9 then provides: "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)". Thus, for paragraph 9, two requirements must be satisfied: (a) that the person is an illegal entrant, and (b) that he is not granted leave to remain. If a leave obtained by deceit was treated as void, an illegal entrant satisfied both of those requirements. The decision in ex parte Khawaja, however, made that approach no longer possible, because it established that, although leave was obtained by deceit, nevertheless, for the purposes of the Act of 1971, it was to be treated as a real leave, although the applicant was an "illegal entrant" because the leave was obtained by means rendered criminal by section 26 of the 1971 Act. It was, therefore, submitted by Mr Riza, who appeared for the applicant in that case as he has on the appeal in this case, that (i) the leave was real; (ii) that the leave was extended by the Variation of Leave Order 1976; (iii) that, when the directions to remove were given, the applicant was entitled to a valid leave to enter not by virtue of the original leave obtained by deceit but by virtue of fresh leave given by the 1976 Order. That argument of Mr Riza was rejected in this court. In the case of ex parte Lapinid the steps to remove the applicant, under the summary procedure under schedule 2, who had by deceit obtained leave to enter, were held to be not unlawful. Browne-Wilkinson LJ, after reference to passages in the speech of Lord Bridge of Harwich in ex parte Khawaja, continued at page 1273E: "These passages are consistent only with the view that, if it is shown that the leave to enter has been obtained by fraud, there is power, under paragraph 9 of Schedule 2 to direct removal of the applicant, notwithstanding that in one sense he has 'leave to enter'. In our judgment, the order of 1976 can make no difference: it does not provide that there shall be a new and different leave to enter but merely extends the period of permitted stay granted by the original leave. Any such extension will be infected with the same vice as the original leave, the period of which has been extended. Although it is established by ex parte Khawaja [1984] AC 74 that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under paragraph 9, the words of paragraph 9 itself do not readily fit in with this conclusion once it is established that the original leave to enter is not invalid. The only explanation is that adopted by the judge in this case, viz that the words in paragraph 9 'Where an illegal entrant is not given leave to enter . . .' are to be read as meaning, 'When a person known to be an illegal entrant is not given leave to enter . . .'. This construction produces the result that leave to enter, given at a time when it is not known that an entrant is illegal, is irrelevant for the purposes of paragraph 9". The argument now advanced by Mr Riza in this case seems to me to be impossible to sustain. There is no trace whatever in the evidence of the appellant being given leave to enter at a time when it was known that he was an illegal entrant. The immigration authorities are not, in my judgment, required to take immediate steps to procure the summary removal of an illegal entrant at the earliest moment that it is known to them that there is evidence justifying the conclusion that the entry had been obtained by deception. If Parliament had intended such a time limit to apply it would, in my judgment, have said so by plain words. Further, I do not accept the argument based upon necessary implication by reason of the presence of section 28. I see no reason to hold that Parliament intended that the summary powers should be incapable of exercise in any case where the time limit for the taking of a prosecution has expired, whatever the reason for delay might be. The reasons for the delay in this case, after the interview in April 1988, were given in evidence and accepted by the judge, and they have not been attacked by submission in this court, namely that no such action should be taken before the applicant had been tried for the offences and which he had been charged in January 1988. There is, in my judgment, no basis for attaching the validity of that decision or the propriety of the making of it in all the relevant circumstances. I would dismiss the appeal so far as it is based upon what is called "the time point". As to the second issue, Mr Riza acknowledged that the test of materiality is to be found accurately set out in the judgment of Neill LJ in ex parte Bugdaycay which I have already referred to. Mr Riza acknowledged that if the immigration officer had known the true facts when the appellant arrived on 6 October 1986, he would have been entitled to set aside the entry certificate under paragraph 13 of HC 169. He submitted, however, that the immigration officer was not bound to refuse entry and was obliged to consider an application for leave to enter independently of the entry clearance under paragraph 56 and paragraph 57 of HC 169 on the assumption that, if he had not in fact told the lying story which he did, he might have told the truthful story and claimed leave to enter as a returning resident, notwithstanding the expiration of the two years. I regard this contention as unarguable. It is fully covered by the observation of Neill LJ, at page 160 in the report, expressly approved in the House of Lords, the full text of which I have already set out. It was sought to distinguish that principle by the contention that, if the true facts were known to the immigration officer, he could have granted leave to enter as a visitor with a view to making application for leave to remain permanently under rule 57 of the HC 169. Reliance was placed on words in the speech of Lord Bridge of Harwich in ex parte Khawaja at page 118D, emphasis being placed upon the words in the parenthesis: ". . . 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'". As I say, Mr Riza fastened on the words "leave to enter would not have been granted" as meaning that, if the misrepresentation had not been made, there must have been a refusal in any form. I would reject this submission also. It seems to me to be disposed of by the passage in the judgment of Neill LJ in ex parte Bugdaycay to which I have referred. Mr Riza argued that there was a difference in status between being given leave to enter as a visitor, and being given leave to enter as a refugee seeking asylum, which were the circumstances in the case of ex parte Bugdaycay. There is indeed a difference but it is, in my view, irrelevant. Those who apply for leave to enter are required to tell the truth in the statements which they make to the immigration officer which are material to their application. The misrepresentations made by this appellant were, in Neill LJ's phrase, not on matters of detail but constituted a version of the appellant's intention, which was in fundamental respects at variance with the truth. The decision in this case also, that the appellant is an illegal entrant, appears to me to be unassailable. For these reasons, I would dismiss this appeal.

Judgment Two:

TAYLOR LJ: I agree.

Judgment Three:

PURCHAS LJ: I also agree, and there is nothing that I wish to add.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Edwin Coe agents for JR Waite & Alsop, Darlington; Treasury Solicitor