Saleem Abbassi v. Secretary of State for the Home Department

Saleem Abbassi v Secretary of State for the Home Department

Court of Appeal (Civil Division)

[1992] Imm AR 349

Hearing Date: 16 March 1992

16 March 1992

Index Terms:

Judicial review -- seaman -- refused leave to enter the United Kingdom -- contention that notice of refusal not served in time -- no evidence to support allegation that notice was not left with the master of the vessel -- application to introduce fresh evidence before the Court of Appeal -- whether admissible -- whether judicial review the appropriate remedy -- whether in the circumstances renewed application an abuse of process -- costs awarded personally against counsel and solicitors. Immigration Act 1971 (as amended) sch 2 paras 2, 6, 16(3): Supreme Court Act 1981 s 51(6): Immigration Appeals (Notices) Regulations 1984 r 6(a).

Held:

Renewed application for judicial review, refused by Kennedy J. The applicant was a member of the crew of a vessel which arrived at Tilbury. The immigration officer decided not to permit certain crew members, including the applicant, to enter the United Kingdom without leave, in exercise of his powers under paragraph 2(1)(b) of the 1971 Act. The applicant left the ship before the appropriate notice was served on him. The immigration officer accordingly decided to refuse him leave to enter: that notice was served on the master of the vessel. In the court below it was contended that the notice was never served on the master of the vessel. The learned judge refused the application, there being no evidence to suggest that the immigration officer had not told the truth about the sequence of events. On the renewed application before the Court of Appeal counsel sought to introduce fresh evidence on handwriting, to demonstrate that the signature of the immigration officer on his affidavits was different from that purported to be of the same immigration officer, on the notice of refusal. Held 1. The court would not receive the fresh evidence: it did not satisfy the conditions set out in Ladd v Marshall and it was not tendered by a true expert. 2. In any event, following Swati, judicial review was not the appropriate remedy: the applicant should appeal to an adjudicator. 3. Once it was clear that the court would not accept the fresh evidence, it was irresponsible of counsel to seek to advance argument before the court, and an abuse of process. 4. The respondent's costs thrown away, would be paid personally by counsel and his instructing solicitors.

Cases referred to in the Judgment:

Ladd v Marshall [1954] 1 WLR 1489: [1954] 3 All ER 745. Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88: [1986] 1 WLR 477. R v Secretary of State for the Home Department ex parte Saleem Abbassi (unreported, QBD, 6 February 1992).

Counsel:

S Mahmood for the appellant; D Pannick for the respondent PANEL: Lloyd, Woolf, Russell LJJ

Judgment One:

WOOLF LJ: This is an appeal from a judgment of Kennedy J on 6 February of this year, on which occasion he refused an application for judicial review by Saleem Abbassi. Very shortly, the facts are as follows: on 1 October 1991 Mr Abbassi was seen by an immigration officer aboard a vessel on which he had travelled to this country. He is a citizen of Pakistan. Having been seen by an immigration officer, he left the ship, he says, with permission, and only returned to the ship five days later. Before this court and before Kennedy J there were three affidavits by an immigration officer, David Walton. In his first affidavit, he says: "The applicant who is a national of Pakistan and therefore subject to immigration control arrived at the port of Tilbury on board the motor vessel Sealo 1 on 1st October 1991. I was the immigration officer on duty on the date of the ship's arrival. I was aware from the previous visit of the same ship to the port at Tilbury that no less than six seamen had entered the United Kingdom and deserted. I therefore informed the ship's agent in the United Kingdom . . . that I had decided not to permit certain members of the crew, including the applicant, to enter the United Kingdom without leave, pursuant to section 8 of the Immigration Act 1971. Instead I required these crew members, including the applicant, to submit to an examination in accordance with schedule 2 to the 1971 Act." Then in paragraph four he says, having conducted certain inquiries, that he decided to refuse the applicant leave to enter the United Kingdom. Then he says "I . . . served him with a Notice of Refusal of Leave to Enter of 1 October 1991". In the following paragraph of his affidavit, he says: "Before I was able to serve the applicant with a copy of this notice I observed a group of men leaving the MV Sealo 1. I was later informed that one of these men was the applicant. I was therefore left with no alternative but to inform the captain of the ship that the applicant had been refused leave to enter the United Kingdom and it was his responsibility to prevent him from disembarking and detain him in custody on board the ship in accordance with paragraph 16(3) of schedule 2 to the Immigration Act 1971. I am unclear as to the precise subsequent sequence of events. It is sufficient to state that on a further return by the applicant to the ship he absconded, yet again, and was absent until the evening of 5 October 1991." There is a possible conflict which is apparent between paragraph four and the part of paragraph five of that first affidavit of the immigration officer which I have read, since paragraph four on a first reading suggests that there had been service of a notice on the applicant personally on 1 October, whereas that would not be possible if the facts set out in paragraph five are correct. However, the apparent conflict can be explained when it is realised that it is possible to serve a notice of refusal of leave to enter this country, not personally, but by leaving the notice at the person concerned's last address where personal service is not practical. On the account given by Mr Walton, that was the situation, because before Mr Walton had an opportunity to serve the notice the applicant had left ship. At any rate, that discrepancy was relied upon by the applicant, and in consequence of that he obtained leave to make his application for judicial review. Two subsequent affidavits were filed on behalf of the respondents by Mr Walton, which make the position clear beyond peradventure that it was Mr Walton's contention that he had indeed served the notice by leaving it with the captain of the ship on 1 October. However, notwithstanding that, before the judge it was contended on behalf of the applicant that he was in a position where he had not been served with a notice of refusal, as is required by the Act, within a period of 24 hours, because, contrary to what had been deposed to by Mr Walton, the situation was that service on the captain, as Mr Walton deposed, had not taken place. Before the judge there was absolutely no evidence whatsoever to show that what the immigration officer said was other than the truth, apart from the fact that it was suggested that there was a difference between the signatures which appeared on the affidavits of Mr Walton and the signature which appeared on the notice of refusal of 1 October. That was a matter upon which the applicant, through his solicitors and counsel, relied before the judge. The judge took the view -- and rightly took the view -- that there was no substance in that allegation, and he refused the application for judicial review, as I have already indicated. Even if he had thought there was possibly some substance in the point, there would have been difficulty in the judge investigating it because this court has made it clear in the case of R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477 that in the ordinary way, if a person who is refused leave to enter wishes to dispute the facts relied upon for his being refused leave to enter by the Home Office, the correct course to adopt is not to make an application for leave to apply for judicial review, but to appeal to a tribunal which is regarded by Parliament as the appropriate forum in which to investigate matters of that sort. It is true that the appeal procedure in the case of persons who are refused leave is not one without its drawbacks, because the applicant in that situation is required to leave the country before he appeals. However, that is the procedure which Parliament has provided. Parliament has expressly required that the person who wishes to appeal has to leave the country, and it is not for this court to question the clear intent of Parliament. Notwithstanding what I have said with regard to the facts and with regard to the Swati case, it was thought right to appeal to this court. The matter has come on with reasonable expedition, it having only been before the judge on 6 February, and one can appreciate that there might be difficulty in obtaining evidence of a handwriting expert if it was thought appropriate to obtain such an affidavit for the benefit of an application for leave to adduce further evidence before this court. When this appeal was called on, an application was made by counsel, Mr Mahmood, on behalf of the applicant, for leave to rely on evidence with regard to handwriting. This was not evidence from a handwriting expert, as you might expect, but from a barrister, Mr Louis Alfred de Pinna, who says in the course of his affidavit that in his professional practices, each of which have endured over half a century, he has a good deal of experience in comparing signatures for professional, including court purposes, with or without handwriting experts. Mr de Pinna clearly does not put himself forward as a handwriting expert. That is clear from the language which he uses in that paragraph. However, in the affidavit he did venture a view of whether or not the signatures which he compared were made by the same person. This court rejected the evidence because, first of all, it did not comply with the requirements of Ladd v Marshall, and secondly, because Mr de Pinna, with the greatest respect to him, is not an appropriate person to give expert evidence on questions of handwriting. However, with or without Mr de Pinna's evidence, I regard the bringing of this application for judicial review before this court on an appeal as an abuse of process and an example of irresponsible conduct on the part of those who are acting on behalf of Mr Abbassi. Counsel and solicitors owe a duty to their clients. They also owe a duty to the courts. A proper performance of the latter duty is wholly inconsistent with their bringing this appeal before this court. In my view, there was no possible prospect of this appeal succeeding. Indeed, I go further. I say it was irresponsible of counsel to seek to advance arguments before this court once it was clear that the court was not prepared to accept Mr de Pinna's evidence as a handwriting expert. I therefore would dismiss this appeal. However, I think it is right that I should mention that during the present constitution of this court this is the second case of this nature in which there has been an appeal in an immigration matter where the same counsel has appeared. In that other case I was concerned about the serious allegations which were made. The case involved establishing that the evidence given by an immigrant was untrue on the basis of the fingerprint records retained by the appropriate authority. It was suggested there, with really no justification, that it was possible that there had been a conspiracy involving the creation of false fingerprint records to prevent an immigrant who was entitled to remain in this country being able to do so. This court dismissed that appeal in the same way as we have dismissed this appeal. But it does underline, in my judgment, the concern which I feel about the conduct of those who are responsible for bringing this appeal before this court.

Judgment Two:

RUSSELL LJ: I agree, and wish specifically to associate myself with the observations of my Lord by way of stricture of those who represent this appellant.

Judgment Three:

LLOYD LJ: I also agree.

DISPOSITION:

After hearing counsel for the respondent and for the appellant and giving the appellant's solicitors the opportunity to be heard, the court awarded costs of @500 against counsel and the solicitors for the appellant, each to bear @250. Application dismissed costs as above

SOLICITORS:

Chetty & Patel, Leicester; Treasury Solicitor