Rubeena Ramaiah v. Secretary of State for the Home Department

RUBEENA RAMAIAH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

COURT OF APPEAL (CIVIL DIVISION)

[1992] Imm AR 263

Hearing Date: 29 January 1992

29 January 1992

Index Terms:

Political asylum -- visitor refused leave to enter -- granted temporary admission -- application for asylum -- refused after consideration -- whether the letter sent to the applicant could properly be construed as a refusal of leave to enter -- whether, if it could be, notice had been given within the statutory time limit. Immigration Act 1971 sch 2 para 6(1): HC 251 para 75.

Held:

Renewed application for leave to move for judicial review, following refusal by Rose J. The applicant was a citizen of India who arrived with entry clearance but was refused leave to enter as a visitor: she was granted temporary admission. She withdrew an appeal lodged against the refusal of leave and applied for asylum. After consideration the application was refused. A letter was sent to her, stating inter alia, "The Secretary of State . . . maintains his decision of 25 October to refuse asylum". Counsel argued that by its terms, the letter could not be construed as a refusal of leave to enter: nor had the immigration officer believed it to be so. Furthermore, in the events which had happened, if it were a proper notice, it had not been served within the statutory time: the notice summoning the applicant to the airport for re-interview was dated 13 November, but the letter was not sent until 15 November 1991. It followed that the examination must have been concluded at latest by the end of 13 November. Held 1. The belief of the immigration officer as to the nature of the letter in question was irrelevant. The question was what effect the letter had on the recipient. 2. The letter referred to an earlier letter which had explained in detail the decision of the Secretary of State. It was "not seriously arguable that that letter was not an effective notice indicating that the applicant was being refused leave to enter". 3. Following, Thirukumar, the examination had not been concluded on 13 November 1991 and the letter of refusal of leave to enter had been sent in time. 4. The court noted the possible conflict between HC 251 paragraph 75 and the settled cases but did not pursue the issue.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Sittampalam Thirukumar and ors [1989] Imm AR 402. Secretary of State for the Home Department v Immigration Appeal Tribunal and an Adjudicator [1990] Imm AR 492. R v Secretary of State for the Home Department ex parte Rubeena Ramaiah (unreported, QBD, 6 December 1991).

Counsel:

A Arden QC and I Lewis for the applicant; I Burnett for the respondent. PANEL: Balcombe, Ralph Gibson, Stuart-Smith LJJ

Judgment One:

BALCOMBE LJ: This is a renewed application for leave to apply for judicial review, the applicant, Miss Rubeena Ramaiah, having been refused leave by Rose J on 6 December 1991. The applicant comes from India. She last arrived in the United Kingdom on 1 October 1990. She was the holder of an entry clearance issued in Madras on 26 July 1990. However, after being interviewed by an immigration officer at Heathrow Airport, she was refused leave to enter but granted temporary admission. She lodged an appeal with an adjudicator against that decision, but subsequently withdrew that appeal and made an application for asylum following advice on 24 January 1991. The facts relating to her attempted entry on 1 October 1990 are as follows. She spoke good English and was interviewed in that language. On arrival she was interviewed by an immigration officer, Mr Walker. She held an entry clearance endorsed "visit/double entry" issued in Madras on 26 July 1990. He asked her how long she wished to stay in the United Kingdom and what she intended to do here. She stated that she intended to stay for ten days to visit a cousin, Hardip Singh of 4 Heathway, The Common, Southall, Middlesex. She possessed US$300 in travellers' cheques and an open-dated return ticket to Madras. In reply to a further question, she told Mr Walker that this was her first visit to the United Kingdom; she had never previously met Hardip Singh but had friends living in the United Kingdom. She stated that she did not work in India, the money for her visit having been left to her by her deceased father. She said that she resided at home with her mother and two sisters. She claimed to be single with no marriage intentions as she did not trust men; she had decided to make this visit as she had been going through a hard time mentally. At this point Mr Walker, the immigration officer, was not satisfied that she qualified for leave to enter as a visitor. He therefore served her with form IS81 requiring her to submit to further examination. The applicant's story to Mr Walker turned out to be a tissue of lies. She had been here before in November 1989 on a different passport -- in fact, in her married name, she having been previously married. She had attended a school of English in London, and apparently intended to spent another six months at that school. She also had a reference from a lady in Chiswick for whom she had performed domestic chores. She had met Hardip Singh on her previous visit. He was not her cousin. He was not her sponsor, as initially claimed. Her actual sponsor was a friend, a Mr Iqbal Indrar Singh Sandhu, who was studying for a Master's degree at the City University. The applicant, then being in this country on a temporary admission, applied for asylum. Her grounds are set out as follows. She said that she had been harassed by the police. She had been to a wedding in the Punjab, where a Mahesh Indrar Singh attended. He was a cousin of her boyfriend. Essentially she said that because of her contact with this man the police had embarked on a process of harassing her. That was added to in some detail. She was interviewed in relation to her asylum application on 25 February 1991, and an asylum application form was filled out. She was next asked to attend an interview on 16 September 1991. She was then handed a letter dated 30 August 1991 which indicated that the Home Secretary was minded to refuse her application. That letter, which is contained at pages 33 and 34 of our bundle, sets out in considerable detail the grounds of the applicant's claim to qualify for asylum and the grounds of the Secretary of State's reasons for being minded to refuse that application. She then handed over a written representation further to explain her position, and by a letter dated 25 October 1991 the Home Secretary confirmed the decision which he had previously indicated he was minded to make, namely to refuse her application for asylum. That letter was handed to the applicant when she attended at Heathrow Airport for an interview on 13 November 1991. However, she made further representations at that interview. On the same day -- ie 13 November 1991 -- there was issued a document signed by a Mr Rowe, an immigration officer, varying the conditions upon which the applicant's temporary admission had been granted, in the sense that it confirmed the address at which she should reside, and then paragraph 3 required her to report to Terminal 4, Heathrow/British Airways at a time on 16 November for a particular flight which was indicated to Madras. Then by a letter dated 14 November 1991 the Home Secretary, acting through a Miss McGregor of the Immigration and Nationality Department, wrote in the following terms: "Dear Miss Ramaiah, I refer to your application for asylum which was refused on 25 October 1991. You were interviewed on 13 November 1991, given a copy of the letter setting out the Secretary of State's reasons for refusing asylum and asked to comment. This is to inform you that your further comments have been carefully considered in the Asylum Division of the Immigration and Nationality Department but are not considered to add substantially to your asylum claim. The Secretary of State therefore maintains his decision of 25 October 1991 to refuse asylum." That letter was, as is common ground, faxed by the Home Office to the applicant's solicitors on 15 November 1991. At the initial application before Rose J the applicant contended that the Home Secretary's grounds for refusing asylum were Wednesbury unreasonable. But that ground and, indeed, other grounds then pursued have not been persisted in, and before this court the renewed application is really made on two grounds only. First, that the letter of 14 November 1991 was not such a refusal of leave to enter as was required to be given by an immigration officer, (1) because on its terms it does not appear to be such, and (2) because, as appears from the affidavit of the applicant's solicitor, the immigration officer concerned did not believe himself to be refusing leave to enter but was merely, so it is said passing on the Home Secretary's refusal. The other basis of the application is that in any event the notice was not given within the 24-hour time limit which is required under paragraph 6(1) of the second schedule to the Immigration Act 1971. The contention here is that the examination must have concluded at the latest by the end of 13 November when the notice about reporting to the airport was dated. It was not, however, sent until 15 November, and therefore was not within the requisite time limit. In the course of the arguments before us we drew the attention of counsel to the new rule 75 of the immigration rules. That provides in the final paragraph as follows: "Where a person claims asylum after being refused leave to enter he will not be removed until the Home Office considers his case" -- and that is exactly what happened here -- "If the Home Office decides to refuse asylum and there are no other grounds for admission, the refusal of leave to enter will stand and removal may proceed. If the Home Office decides to grant asylum, the immigration officer will grant leave to enter." On the face of it the second sentence -- "If the Home Office decides to refuse asylum and there are no other grounds for admission, the refusal of leave to enter will stand and removal may proceed" -- would appear to be appropriate to the facts of this case. However, Mr Burnett, who appears for the Home Office before us, does not seek to rely on that provision at the present time because he accepts that it may be inconsistent with the decision of this court in Secretary of State for the Home Department v Immigration Appeal Tribunal [1990] Imm AR 492. I merely wish to say that sooner or later somebody will have to consider carefully how the procedure should operate in the light of that rule, but, in view of the concession made by Mr Burnett, we give no further consideration to it. I therefore return to the grounds which Mr Arden pursued on behalf of the applicant, namely that the letter of 14 November is not an effective notice of refusal of leave to enter both because of its terms and also because the immigration officer who gave it did not believe it to be such. I can deal quite briefly with the second point. The belief of the immigration officer is irrelevant in my view. The question really is what effect the notice had upon the person who was intended to rely on it. Particularly in its reference to the letter of 25 October 1991 which sets out the grounds of refusal of asylum in great detail, in my view it is not seriously arguable that that letter was not an effective notice indicating that the applicant was being refused leave to enter -- she being not here as an entrant at the time the letter was sent -- on the grounds that her application for asylum was being rejected. At first blush the other point about the timing by reference to the notice of 13 November requiring her to attend at Heathrow Airport on 16 November, and therefore that the examination must have been concluded earlier than that date, appeared to have some substance. But I bear in mind what Mann LJ said in the case of Thirukumar [1989] Imm AR 402, which in fact merely repeats what the other lord justices said but sets it out in summary form. He says this at page 414: "I agree with my Lord, the Master of the Rolls that examination is concluded only when all the relevant information to enable the decision to be made by the immigration officer is in his possession." If the immigration officer considered that the examination had been concluded on 13 November, one wonders why he felt it necessary to report back to the Home Secretary, in whom the ultimate decision as to the grant or refusal of asylum lay, and indeed why it should then have been necessary for the further letter of 14 November to have been written on behalf of the Home Secretary and to be forwarded to Miss Ramaiah. It seems to me therefore that when one considers the matter in greater detail there is no substance in the point that the notice was given out of time. Of course, for the reasons which I have already indicated this application seems singularly to be lacking in merit, but having said that, we have endeavoured to give those grounds upon which Mr Arden relied in support of his renewed application for leave proper consideration. Having given them that consideration, we refuse leave to apply.

DISPOSITION:

Application dismissed.

SOLICITORS:

Sriharans Southall, Middlesex, Treasury Solicitor.
 

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