Tadimi v. Secretary of State for the Home Department

TADIMI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 90

Hearing Date: 6 October 1992

6 October 1992

Index Terms:

Illegal entrant -- admitted to United Kingdom as a student -- enrolled on course and fees paid -- applicant nevertheless working full-time as a chef -- whether applicant could be considered a student within the rules -- whether assertion on entry that he was a student was a material deception justifying Secretary of State's conclusion that applicant was an illegal entrant. Immigration Act 1971 s 33(1): HC 251 para 113.

Held:

Renewed application for leave to move for judicial review following refusal by Rose J (as he then was). The applicant had been admitted to the United Kingdom, following earlier periods of leave, as a student. He had given the immigration officer details of his course. He was indeed enrolled on a course and had paid his fees. He rarely however attended, had failed examinations and had worked for some time, full-time as a chef, working hours far greater than those permitted by the condition attached to his leave. The Secretary of State concluded that he had secured leave by deception, he not being a bona fide student: accordingly he was considered an illegal entrant. Before the learned judge at first instance counsel argued that there was no evidence from the Secretary of State and thus the Secretary of State had not discharged the burden of proof that was on him. The court rejected that argument pointing out that on an ex parte application it was not to be expected that the respondent would have filed evidence. If the point had substance then leave to move for judicial review would have to be granted in every illegal entrant case, to receive evidence from the respondent on an inter partes hearing. The court chose rather to approach the application on the basis "is it arguable, on behalf of the applicant, that it can be shown that the immigration officer was wrong?". That point was not taken before the Court of Appeal where counsel raised again two other issues also argued in Queen's Bench. First, that the applicant was a student (albeit he was also a chef): second that the immigration officer had used the term "concealed" in his report, demonstrating he had used the wrong test and had laid on the applicant a duty of candour, which following Khawaja he did not have. Held 1. It could not be said there had been no deception because the applicant was indeed a student: the applicant's nominal role as a student was not his real role or occupation. 2. The Secretary of State had been entitled, on the facts, to conclude that leave to enter had been granted on the basis of deception. 3. The use by the immigration officer of the term "conceal" was irrelevant: it was not a case that turned on candour or concealment.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. R v Secretary of State for the Home Department ex parte Mohammed Tadimi (unreported QBD, 16 1992).

Counsel:

M Shrimpton for the applicant; M Shaw for the respondent PANEL: Sir Thomas Bingham MR Glidewell, Leggatt LJJ

Judgment One:

SIR THOMAS BINGHAM MR: This is a renewed application for leave to move for judicial review following refusal of leave by Rose J (as he then was) on 16 July 1992. There are two decisions which it is sought to review, the first of them by the Secretary of State on 28 September 1991 determining that the applicant was an illegal entrant and the second on 30 April 1992 affirming that decision. The applicant is a citizen of Morocco and in December 1987 he entered the United Kingdom as a visitor. He obtained various extensions, some of them I think as a visitor and others of them as a student, and his last extension was until January 1992. It is relevant to mention that in April 1991 he obtained leave to work up to 15 hours per week to support himself as a student, that being the maximum which a student is allowed to work, the purpose plainly being that paid employment should be an ancillary activity to support the cost of studies. The applicant's last entry to this country was on 12 September 1991 and that was the relevant entry for the purposes of this application. He then stated that he was a student and was admitted as such. The Secretary of State's case and the basis upon which he was determined to be an illegal entrant is that he was not at that time a bona fide student. It is true that he was enrolled on a course of study as a student and also true that he had paid fees at a college of education until the end of December 1991, but the Secretary of State contends that he was not a bona fide student in the sense that he was not pursuing a serious course of study. He was in fact working full-time as a chef, which he had been doing for some years at a substantial salary. By doing so he was in breach of the immigration rules and it is said that he would never have been admitted had his true position been understood on 12 September 1991. It is further said that the representation that he made was untrue. The Secretary of State draws attention to a number of facts, one of which was that, when questioned on 28 September 1991 which was just two weeks after the applicant had entered as a student, he was unable to give even basic details of the course that he was supposed to be attending, and admitted that he had not always attended regularly and had failed his exams. It indeed appeared on enquiry that he had not attended the course since May 1991, although he had visited the college in July in order to obtain a letter from the college stating that he was a student. It appears that this was a document which the applicant wanted for purposes of presentation to the immigration authorities. His work record was investigated and, as I have said, it emerged that he had been working full-time as a chef earning some @200 a week and working something of the order of 39 hours a week or perhaps at various stages even longer. The permission that he had over the last few months permitted him to work as I have indicated, but only for a limited period and only in order to support his studies. Mr Shrimpton, who has advanced this case with great economy, but his case is none the worse for that, has taken two points: first of all, that there was no deception because the applicant said he was a student and that, Mr Shrimpton submits was indeed the case. For my part, I have to say that I find that submission wholly unpersuasive. The applicant's nominal role as a student was not his real role or occupation in this country, and the Secretary of State was fully entitled to regard it as deceptive to represent that it was. Mr Shrimpton's second point relates to the use in a report made by the immigration officer of the word "concealed" which Mr Shrimpton submits shows that the wrong test was being applied, that it was a mere test which had been superseded by the House of Lords' decision in Khawaja. Mr Shrimpton submits, rightly, that there is no duty of candour on an applicant and that he cannot be held to have entered by deception if he has failed to reveal something. So far as the principle is concerned I am, for my part, willing to go along with Mr Shrimpton but, whatever word may on one occasion have been used by the immigration officer in his report, it is abundantly plain that this simply was not a case of lack of candour or concealment. The complaint very simply is that the applicant expressly represented that he was a student when that was deceptive because in reality he was not. We have had the opportunity of looking at the judgment which Rose J delivered in this case. He formulated the test at page 1C of his judgment that he proposed to apply. He outlined the basis of the Secretary of State's decision at page 2F, namely that he misrepresented his status to the immigration authority, and at page 3G the judge said: "The consequence of all this, as it seems to me, is that the work which he was doing during 1991 was quite inconsistent with him being a student in accordance with rule 113 and, that being so, the conclusion inevitably follows, as it seems to me, that it is quite unarguable that the immigration officer got it wrong in concluding that a misrepresentation was being made to him." I find myself in complete agreement with the approach of Rose J and it follows that this application must be refused.

Judgment Two:

GLIDEWELL LJ: I agree.

Judgment Three:

LEGGATT LJ: I agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Fatima Thobani & Co, London NW6; Treasury Solicitor

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