Ching Fai Keung; Mei Hung Keung v. Secretary of Statefor the Home Department


Court of Appeal (Civil Division)

[1992] Imm AR 201

Hearing Date: 27 November 1991

27 November 1991

Index Terms:

Illegal entrants -- no record appellants had been granted leave to enter -- appellants asserted they had been waved through immigration control -- Secretary of State decided to treat them as illegal entrants -- declined to exercise discretion in their favour -- removal directions given -- whether there was an obligation on the Secretary of State, before declining to exercise discretion in their favour, to decide whether appellants had entered innocently through negligence of immigration officer or had evaded immigration control -- whether, if immigration officer had been negligent, Secretary of State had an obligation to consider whether appellants had a legitimate expectation that they had been granted indefinite leave to enter. Immigration Act 1971 s 3(1)(a).


Appeal from Kennedy J who had set aside leave granted to the appellants to move for judicial review of the Secretary of State's decision to issue removal directions, following his conclusion that they were illegal entrants. The appellants were citizens of Hong Kong. They arrived in the United Kingdom in April 1983. They were never given leave to enter. They asserted that they presented themselves to an immigration officer who inspected their passports and waved them through immigration control. There was an unresolved dispute as to whether they had indeed been waved through immigration control or had evaded control. The Secretary of State had not reached a conclusion on that issue. Either way, in his opinion and following Rehal, the appellants were illegal entrants. He had declined to grant them indefinite leave to remain and had issued removal directions. Counsel argued that the Secretary of State had a discretion in deciding whether to grant the appellants indefinite leave. Before exercising that discretion he had an obligation to decide whether or not the appellants had been innocent of evading immigration control. Further, he had an obligation to consider whether, if the immigration officer had been negligent or indolent, the appellants had a legitimate expectation that they had been granted indefinite leave to enter. Held 1. Following Rehal, whether or not the appellants were innocent of evading immigration control, they were illegal entrants: they required leave under the Act and they did not have leave. 2. It was the Secretary of State's normal practice to remove illegal entrants whether they were guilty of evading immigration control or not. 3. There was therefore no obligation in law for the Secretary of State to determine whether an illegal entrant had evaded immigration control before deciding to remove him: likewise he was not obliged to consider whether there had been negligence on the part of an immigration officer.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139 Rehal v Secretary of State for the Home Department [1989] Imm AR 576. R v Secretary of State for the Home Department ex parte Ching and Mei Keung (unreported, QBD, 2 October 1991).


R de Mello for the appellants; Miss A Foster for the respondent PANEL: Lloyd, Mann, Beldam LJJ

Judgment One:

MANN LJ: In formal terms there is before the court an appeal against an order of Kennedy J dated 2 October 1991, whereby he set aside a leave to move for judicial review, which had been granted ex parte by Potts J on 21 August 1991. In substance the proceedings before this court are effectively a renewed application for leave. The appellants (or, if it be preferred, applicants) are Ching Fai Keung and his wife, Mei Hung Keung, who were the applicants for the leave which was set aside. The respondent is the Secretary of State for the Home Department, who was the respondent to the leave, and who had applied for it to be set aside on the ground that the applicants' case was unarguable. The decisions which the applicants by their application had sought to impugn were (1) a refusal to grant them indefinite leave to remain in the United Kingdom, and (2) the making of a removal direction whereby the applicants are to be removed from the United Kingdom to Hong Kong. The applicants come from Hong Kong. They do not have the right of abode in the United Kingdom. However, they arrived, to use a neutral word, in England from Germany in April 1983. They had been here ever since and children of the marriage have been born to the applicants in 1984 and 1988. The male applicant has worked as a chef at a restaurant in the Kings Heath district of Birmingham. The male applicant has described the circumstances of entry into the United Kingdom in an affidavit sworn in support of the application for leave. In paragraph four of that affidavit he deposes: "In April 1983 my wife and I arrived at Harwich from Germany where I had been working since 1979. We both held Hong Kong passports. We queued at the immigration control. There were two immigration desks operating. We handed our passports to the immigration officer thinking that we would be allowed to enter the United Kingdom without any difficulty. The officer looked at both our passports. He did not endorse them. He closed our passports and [returned them] to us. He waved us through. I do not remember if he asked me any questions. The incident lasted a matter of minutes. From this I understood that we were allowed to enter the United Kingdom without limitation of time. I believe that because I held a British Hong Kong passport I was given permission to enter the United Kingdom indefinitely." That account of the circumstances of entry was subsequently enlarged in letters from the Hong Kong Immigrants Welfare Association, who came to the assistance of the applicants. Those letters have been read to us and they are dated 31 December 1987 and 10 December 1987. A more substantial exposition of the circumstances is in a third letter dated 4 May 1989. There is a dispute as to whether the applicants' passage through immigration control was innocent, as it would appear to have been from the account which I have read, or evasive. However, let it be assumed that the circumstances are as deposed by the applicants and as elaborated in the subsequent letters. On that supposition, it being clear that the applicants required leave to enter the United Kingdom, they nonetheless entered illegally and they were and have been illegal entrants. See Rehal v Secretary of State for the Home Department [1989] Imm AR 576. That the applicants were and remain illegal entrants is not disputed by Mr de Mello, who appears on their behalf. That the applicants are illegal entrants means that the jurisdictional precedent fact to the making of a removal order is established. It is thus open to an immigration officer to give a removal direction under schedule 2 paragraph 9 of the Immigration Act. In this case a notice of proposed removal was given on 25 March 1991 and a removal direction was given on 20 May. The reasons for the removal direction, or, putting it another way, for refusing to exercise some extra-statutory discretion and grant leave to remain, have been explained on behalf of the Secretary of State and by the Secretary of State himself. On 8 March the Secretary of State's officer wrote to a firm of immigration and relocation consultants who were acting on behalf of the applicants, explaining why discretion would not be exercised in favour of the applicants. I need not pause upon that letter because the matter is more elaborately dealt with in the Secretary of State's own letter of 10 April 1991. That is a letter written in reply to one from Mr Roy Hattersley MP, within whose constituency the applicants lived. In that letter the Secretary of State sets out the applicants' account of their arrival in the United Kingdom. No criticism is made of that precised account as to its accuracy. The Secretary of State then continued as follows: "Mr and Mrs Keung can provide no evidence of their lawful entry into the United Kingdom. Although it is possible that an immigration officer made a mistake in allowing them entry without endorsing their passports, their account of their arrival is [improbable] and it seems more likely that they evaded the immigration control in some way. Moreover the Court of Appeal ruled in the case of Rehal in 1989 that any person who required leave to enter the United Kingdom, was not examined by an immigration officer and did not obtain such leave, is an illegal entrant, even if the person was waved through immigration control because of the immigration officer's mistake. In this case Mr and Mrs Keung admitted that the immigration officer did not ask them any questions and therefore did not examine them. Accordingly by their own admission they are illegal entrants." That concession has, as I have said, been made today. The letter continues: "It is the normal practice to remove those persons found to have entered the United Kingdom unlawfully, unless there are reasons, usually of a compelling, compassionate nature for not doing so in a particular case. I have had this case carefully reviewed in the light of your representations and I am satisfied that full consideration has been given for the compassionate factors here." There is then a reference to the individual compassionate factors, and the Secretary of State concludes: "Accordingly I am not prepared to alter my decision and arrangements will now proceed for Mr and Mrs Keung's removal to Hong Kong, their children being given the opportunity to accompany them at public expense if necessary." It may be observed of the letter that the Secretary of State has a policy or, as he puts it, a "normal practice". That policy is subject to exceptions which are usually to be found in compelling compassionate circumstances. It is also to be observed that the policy is one applied in general to illegal entrants. It is not a policy to be applied to illegal entrants who have the characteristic of evasiveness as opposed to those who have the characteristics of innocence. Mr de Mello takes two points in regard to the Secretary of State's decision. He says first that the Secretary of State should have decided whether in fact the entry was evasive or innocent. Mr de Mello drew our attention to the speech of Lord Bridge in ex parte Khawaja [1984] AC 74, and in particular page 125E-H. For my part I can derive little assistance from that passage. Lord Bridge was concerned with the necessity for establishing a person was an illegal entrant before discretion could be exercised. That is not this case. The condition precedent to the exercise of discretion is established. I can see no principle which would require this court to impose upon the Secretary of State an obligation to make a finding in regard to innocence or evasiveness of entry before deciding to exercise his discretion in a particular way. The policy, which he is perfectly entitled to hold, does not admit of that distinction. Of course, had the Secretary of State taken this matter into account, it would have been difficult to say that he was not entitled to do so. Miss Foster says that from the terms of the letter he may or may not have taken it into account. Plainly, he had the dispute as to the circumstances of entry before him. However, that said, I entirely reject the proposition that the Secretary of State could arguably have been said to be under an obligation to make a finding as to the circumstances of entry. Accordingly I do not think that Mr de Mello's first submission demonstrates any arguable point. The second point was, I think, closely connected to the first. It was this: the immigration officer, in waving the applicants through, was in some way lackadaisical or indolent or negligent, and the Secretary of State should have taken that into account in deciding how to exercise discretion because the indolence or negligence might have given rise to a legitimate expectation that indefinite leave to remain had been given. That seems to me to be the first argument put at a further remove. Again, I would find it impossible to see how this court could impose upon the Secretary of State an obligation to make a finding in regard to that matter before exercising his discretion. The Secretary of State's discretion is his own to exercise and it can be flawed only on the ground of irrationality. No irrationality argument is or could be raised. Accordingly for those reasons I would either, or both, dismiss this appeal or refuse the renewed application for leave to move.

Judgment Two:

BELDAM LJ: I agree.

Judgment Three:

LLOYD LJ: I also agree. There is no reason to suppose that the decision of the Secretary of State to remove these applicants depended in any way on his view that the applicants are likely to have evaded immigration control. It was enough for his decision that the applicants are in fact illegal entrants, as is conceded by Mr de Mello. This is shown by the Secretary of State's reference to the case of Rehal [1989] Imm AR 576 in the paragraph which my Lord has read. I can see no basis on which we could question the decision of the Secretary of State in this matter. I too therefore would dismiss the appeal.


Appeal dismissed


Harbans Singh & Co, Birmingham; Treasury Solicitor

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