Hettierarchchi v. Secretary of State for the Home Department
- Author: Court of Appeal (Civil Division)
- Document source:
-
Date:
8 May 1991
HETTIERARACHCHI v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Court of Appeal (Civil Division)
[1991] Imm AR 499
Hearing Date: 8 May 1991
8 May 1991
Index Terms:
Refusal of leave to enter -- immigration officer had concluded passport stamps were forgeries -- whether the conclusion was reasonable.
Evidence -- evidence supporting conclusion by immigration officer that passport stamps were forged -- immigration service unwilling to reveal evidence except to the learned judges -- whether the court would receive evidence not made available to the applicant.
Notice of refusal of leave to enter -- original notice given within the statutory twenty-four hours -- second notice later given to applicant with refined reasons -- whether that second notice was a new statutory notice -- whether in consequence the applicant had secured limited leave. Immigration Act 1971 (as amended) sch 2 para 6(3).
Held:
The applicant for judicial review was a citizen of Sri Lanka who was refused leave to enter the United Kingdom. He had asserted, on arrival, that he was a returning resident. The immigration officer had concluded that the relevant stamps in the applicant's passport were forged. An application for judicial review was dismissed by Stuart-Smith LJ. On a renewed application to the Court of Appeal, counsel reiterated his argument below that the refusal of leave to enter was unreasonable. He also submitted again that by issuing a second notice of refusal, with refined reasons outside the statutory time limit, the applicant had secured six months' limited leave by virtue of schedule 2 of the 1971 Act (as amended). In affidavit evidence from the immigration service, it had been stated that the service was reluctant to reveal some of the reasons why the stamps were considered to be forgeries, but that such evidence would be given, if requested, to the learned judges. Held: 1. It would not be appropriate for the court to be apprised of evidence which could not be released to the applicant. 2. Leaving that aside, on a review of the evidence given in open court, it was manifestly reasonable for the immigration officer to have come to the conclusion that the stamps (or at least one) were forged. 3. It was unarguable that the second notice which only refined the reasons was a new notice on which the applicant could rely to assert that because that notice was given more than twenty-four hours after the refusal, he had secured limited leave by operation of law.Cases referred to in the Judgment:
R v Secretary of State for the Home Department ex parte Hettierarachchi [1991] Imm AR 378.Counsel:
E Cotran and V Kothari for the applicant; R Gordon for the respondent PANEL: Lord Donaldson MR, Ralph Gibson, Taylor LJJJudgment One:
THE MASTER OF THE ROLLS: This is a renewed application for leave to apply for judicial review of an immigration officer's refusal to allow the immigrant to enter this country, the initial refusal being on 11 March 1991. The matter came before this court on 27 March this year when I was sitting with Bingham LJ and Mann LJ. They have had to be replaced by Ralph Gibson LJ and Taylor LJ because Bingham LJ is on leave and Mann LJ is sitting in the Criminal Division of the Court of Appeal, and clearly this is not a matter which can wait. I merely make that clear for the record. However, Ralph Gibson LJ and Taylor LJ have, of course, fully read the papers and the matter has been fully re-argued in so far as it is now relevant. The history is this. The applicant sought leave to return to this country as a returning resident who had indefinite leave to remain in this country. He had flown in from Sri Lanka. He produced his old Sri Lankan passport together with a new passport and relied on stamps contained in those passports showing that he had been given indefinite leave to remain in December 1989. The immigration officer at first refused to allow him to enter on the grounds that the leave to remain must have been obtained by deception. So far as can be seen, the process of reasoning was that his immigration history was such that he did not qualify and had never qualified for indefinite leave to remain. Later, there was an amendment or revision of the reasons, saying that the immigration officer, after further enquiries, was not satisfied that he had ever had any such leave. When the matter came before this court on the previous occasion, the Home Office were then making clear that, as a result of still further enquiries, the Secretary of State was satisfied that the relevant stamps appearing in the passport were forgeries. That seemed to the previously constituted court to be so serious an allegation that the Home Office should be given an opportunity to elaborate on their reasons for making it, particularly as at that stage the Home Secretary was saying, as indeed he is still saying, that there are indicators of forgery which it would not be in the public interest that he should reveal, although he was quite prepared to reveal them to the court alone. We took the view that it was inappropriate that we should be apprised of evidence which could not be made available to the applicant. We fully understood the Secretary of State's reluctance to provide a child's guide to forgers by publicly exposing his reasons, but we thought that, if we put that on one side, it might well be that the Home Office could provide better evidence of forgery in a form which could be made available to the applicant. This has now been done. The applicant's immigration history in brief is this. On 16 April 1984 he arrived as a visitor and was given leave to enter and leave to remain for one month. That appears to have been extended in various ways until 31 October 1989. At all events, there is no need for present purposes to go into that. He certainly made various visits abroad during the currency of his leave, and he says that on 7 November 1989 he personally attended at Lunar House and was given an extension of his leave to remain in this country valid until 20 April 1990. He also says that on the same occasion his passport was stamped with a visa exemption stamp. He says that he visited Lunar House again on 6 December when he was granted indefinite leave to remain. Thereafter, he embarked at Gatwick to visit Colombo on 27 January 1990. He returned on 1 March 1990. On 1 February 1991 a new passport was issued to him in London and on 7 or 8 February he left for Sri Lanka, returning to Gatwick on 10 March 1991. The Home Office say, although I am bound to say I do not regard it as directly relevant, that the stamp on his passport showing that he left Gatwick on 27 January 1990 was also a forgery, but clearly what really matters here is the allegation that the indefinie leave to remain and the extensions in November and December 1990 were forgeries. That has been dealt with in a new affidavit from Mr Harrison, who is a chief immigration officer in the Passenger Casework Section of the Immigration Service Headquarters at Lunar House, and it is sufficient to refer to paragraph 8, which says this: "The proposed respondent regards the three stamps on pages 28, 29 and 30" -- those are the indefinite leave to remain, the extensions of time and the visa extension stamps -- "of the applicant's cancelled passport as forgeries for the following reasons. Some of these reasons have already been set out in the affidavit of Wendy Middleton. Additionally there are some matters relating to the form of these stamps which I cannot go into a public forum for fear of encouraging improvements to future forgeries (although the Home Office is content for the court itself to be told those additional reasons if that were thought appropriate)." As I have already made clear, we do not think that appropriate. The affidavit continues: "The Indefinite Leave to Remain stamp of 6 December 1989: i) The applicant has never been entitled under the immigration rules to indefinite leave to remain." Mr Cotran accepts that, as a matter of routine and in accordance with the rules, that is correct but he says, and of course this is also correct, that it would be open to the Secretary of State or the immigration authorities to grant exceptional indefinite leave to remain if they were so minded. So that perhaps in itself is not decisive. However, the matter does not stop there because the affidavit continues: "ii) The unique number RS 107547 has never been issued by the Home Office." That was the number attached to that particular indefinite leave to remain. "iii) Had the applicant called, as he alleges, at Lunar House personally to be given the Indefinite Leave to Remain stamp, he would have been seen at the Public Enquiry Office (PEO). (Unfortunately, the applicant's Home Office file No H300246, and its index card, in the separately maintained filing system, which would show that he did not attend Lunar House, are both missing). Personal callers are not otherwise seen by other staff in IR building unless by prior arrangement, and there is no suggestion of this in this case. The PEO staming-in book has been checked for 6 December 1989 and it shows no trace of Stamp 436 being used that day. Each officer has his own stamp and number and is required to stamp on at the beginning of the day. The stamp number 436 belongs to Ian Sage, an administrative officer in the Immigration and Nationality Department. The same number has come to the notice of Immigration Authorities over the last year or so in previous cases as a counterfeit and the authentic stamp was withdrawn from use in March 1990. Records show that Ian Sage was in fact working on 6 December 1989 but in a separate part of Lunar House and would not have come into contact with granting ILR.' Mr Cotran says, and he is entitled to say it, that it is indeed very unfortunate that the Home Office file and the index card have gone missing because that certainly might have assisted his client. It might equally, of course, have shown that his client is not telling the truth, but he is entitled to the benefit of that doubt. He also says, and again he is entitled to say it, that Mr Sage, who was the owner or licensee of stamp 436, was indeed working in Lunar House at the time and the stamp has not been withdrawn. So, says Mr Cotran, perhaps there has been a chapter of accidents here; perhaps the wrong number was put on; perhaps somebody used Mr Sage's stamp without 'stamping in'; at all events, any benefit of the doubt should be given to the applicant. I agree that any benefit of the doubt should be given to the applicant. The affidavit goes on: "iv) All officers working on the PEO counter maintain a record of the cases they deal with by name, nationality and Home Office file reference number. There is no trace of the applicant in the records for 6 December 1989. Further, when ILR is granted in the PEO, the Home Office file is called for automatically. There is no record of the applicant's file being called for." On the applicant's story, the administrative operation at Lunar House on this particular date was clearly sloppy in the extreme so that, again, perhaps the benefit of the doubt should be extended to him. But then we reach paragraph v) which says: "The signature 'A Sanderson' is not that of an authorised signatory for such stamps. Nevertheless the Home Office staff list for September 1989 has been checked. No person by the name of A Sanderson appears on that list. There were however three Sandersons working in the Home Office at the time relevant. The first is one Mrs B Sanderson who is (and has at all material times been) an immigration officer at Luton Airport and therefore could have had no involvement in signing an ILR stamp at Lunar House. The second is one ML Sanderson who is (and has at all material times been) an executive officer in the Minister's Private Office at Queen Anne's Gate and has therefore had no involvement at all with such applications for leave to remain. Another N Sanderson is (and has at all material times been) employed in the Home Office's Works Department and has accordingly had no contact with passports or casework. Finally there is NC Sanderson who was the head of B1 Division within the Home Office who holds the grade of assistant secretary and he is not involved in day to day casework of this type." There the applicant, I venture to think, comes to the end of the road. There is no possible explanation for this except that of forgery or, as Mr Cotran suggested, that the signature is not "Sanderson" at all. I am bound to say it looks like "Sanderson". It was accepted at the previous hearing, to my recollection, that it was "Sanderson", and there it is. But, of course, although that is the key stamp on which he relies, one is entitled, as a matter of common sense, to have a look at the other stamp because, if any of them are forgeries, then such doubts as might have been otherwise resolved in favour of the applicant disappear very smartly. So I go on with the affidavit, which deals with the visa exemption stamp. It says: "i) The typescript is not the same as that contained in a genuine stamp (I do not wish to go into further detail in this affidavit). ii) The exemption purports to have been granted on 7 November 1989 and does not refer to any grant of leave on the passport, the previous leave having by then expired on 31 October 1989. This does not accord with Home Office procedures." Mr Cotran, of course, is entitled to say that, if Lunar House were being sloppy with their administrative procedures in December, then they also may have been sloppy in November. But, when one gets to sub-paragraph iii) we find this: "The Home Office stamp number 244 had already been withdrawn from use in August 1989 when the officer who had been allocated the number left the immigration service. It was never reissued as it came to the notice of immigration authorities that the number had been encountered in connection with previous counterfeit stamps." To that there is no answer whatever. The affidavit goes on to deal with the embarkation stamp of 27 January 1990 and takes the point that the stamp number 209 was not in use on 27 January 1990, and anyway it is a Gatwick South stamp whereas the relevant airlines flies from Gatwick North. That really does not matter. As to that, Mr Cotran says: Why bother to forge that stamp? To that question which is asked forensically I answer unhesitatingly, "I do not know and it does not matter". What matters is that the visa extension stamp is prima facie quite clearly a forgery and there are good grounds for believing that the indefinite leave to remain, quite apart from that, is a forgery and, when you add the two together, the Home Office case on forgery here is absolutely overwhelming. In those circumstances, there could, I venture to think, be no arguable case whatever. Mr Cotran has one other point that he raises. Whether it could stand in the case of forgery I rather doubt, but I mention it in deference to his argument. He says that there were two refusals here. There was a first refusal on 11 March at the conclusion of the examination of the applicant as a would-be immigrant. That appears on page 20 and it is in these terms: "You have sought leave to enter on the ground that you had an indefinite leave to remain in the United Kingdom when you left and that you have not been away for longer than 2 years but this is not conclusive in your favour. I am satisfied that the leave given on 6.12.89 was obtained by deception. I therefore refuse you leave to enter in accordance with paragraph 78 of the Statement of Immigration Rules HC 251." That was followed up on 14 March, which was of course three days after the interview, by another notice saying: "You have sought entry for settlement, claiming that you had indefinite leave to remain in the United Kingdom when you last left, but I am not satisfied that this is so." That was sent to the applicant himself with a letter, which ends up by saying: "I attach herewith a revised Notice of Refusal of Leave to Enter." There was sent to his solicitors a letter saying: "Please also find attached a copy of the amended refusal notice, details of which I gave you by telephone this morning." Mr Cotran says that is a new notice. As the notice of refusal is given more than 24 hours after the interview examination has been concluded, he is entitled to be given six months' leave to enter. That, again, is quite unarguable. There was a single refusal of leave on 11 March, the reasons for which have been refined in the light of further enquiries. There is no room whatever for the application of paragraph 6(1) of the second schedule to the Immigration Act 1971 which, in wholly different circumstances, might have given the applicant six months' leave to remain in this country. I would refuse leave.Judgment Two:
RALPH GIBSON LJ: I agree.Judgment Three:
TAYLOR LJ: I agree.DISPOSITION:
Application dismissedSOLICITORS:
LN de Silva & Co; Treasury SolicitorDisclaimer: Crown Copyright
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