Akhtar v. Governor of Pentonville Prison

AKHTAR v GOVERNOR OF PENTONVILLE PRISON

Court of Appeal (Civil Division)

[1993] Imm AR 424

Hearing Date: 10 March 1993

10 March 1993

Index Terms:

Illegal entrant -- application for habeas corpus -- whether on the facts detention lawful -- deception of immigration officer on arrival in United Kingdom -- failure to observe conditions attached to grant of temporary admission -- whether breach of such conditions made appellant an illegal entrant. Immigration Act 1971 ss 3(1), 11(1), 26(1), 33(1), sch 2 paras 8(1), 9, 16, 21, 24(1)(e).

Held:

The appellant was a citizen of Pakistan whom the Secretary of State had concluded was an illegal entrant and had ultimately detained pending removal from the United Kingdom. A challenge to his being an illegal entrant was mounted by way of application for habeas corpus. The application was dismissed at first instance and an appeal made to the Court of Appeal. Counsel submitted that the untruths told by the appellant during his interview on arrival in the United Kingdom could not make the appellant an illegal entrant within the terms of s 33(1) of the 1971 Act, which he maintained was directed to clandestine entry. He also submitted that it was not appropriate to characterise the appellant as an illegal entrant because he had breached the conditions attached to the grant of temporary admission. Held: 1. Counsel's submission that s 33(1) of the 1971 Act was confined to clandestine entry was not a proper approach to plain statutory words, and was contrary to Khawaja. On the basis of that deception alone, the detention of the appellant as an illegal entrant was lawful. 2. Following Taj Khan (Evans LJ reserving his position) by the breach of the conditions attached to his temporary admission the appellant was an illegal entrant and his detention was also on that basis lawful.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Yemi Tejuoso (unreported, DC, 3 October 1975). 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 Taj Mohammed Khan (CA) [1985] Imm AR 104. R v Governor of Pentonville prison ex parte Raja Waheed Akhtar (unreported, QBD, 22 December 1992).

Counsel:

M Shrimpton for the appellant; R Singh for the respondent PANEL: Sir Thomas Bingham MR, Kennedy, Evans LJJ

Judgment One:

KENNEDY LJ: This is an appeal from a decision of Owen J, who on 22 December 1992 dismissed an application for a writ of habeas corpus. The background to this matter is that the applicant was born on 16 September 1967 as a native of Pakistan. On 5 September 1991 he came to the United Kingdom and he was interviewed first on that day and then on the following day in Urdu. He said that he was married and that he was on a short visit to the United Kingdom with a particular interest in the London Underground. He also said that he had no political connections. He was at that stage detained because it was not clear to the immigration officer whether or not what he was saying was the truth, and the document which resulted in his temporary admission is at page 15 in the bundle. He was told that he was a person liable to be detained, that he must reside at the address which he was able to give at 15 Leslie Road, that he was not to enter employment, paid or unpaid, and that he had to report on Monday, 23 September 1991. That document also says: "Although you have been temporarily admitted you remain liable to be detained". That exercise of power by the immigration officer was pursuant to paragraph 21 of schedule 2 to the Immigration Act 1971 and, those conditions having been imposed, the applicant apparently ignored them because, four days later on 9 September 1991, he left 15 Leslie Road without any notice to the immigration authorities. Three days later he applied for political asylum using, as it happens, the address at 15 Leslie Road. On 23 September 1991, he failed to report as required but enquiries made by the immigration service showed that he was in fact seeking income support. On 30 October 1991 his application for political asylum was reiterated by a second firm of solicitors -- apparently he had earlier had the advantage of another firm's assistance -- and it then came to the notice of the immigration authorities that he may have been engaging in some form of employment as a taxi driver. On 6 March 1992 he was interviewed, again with the assistance of an interpreter. He said that he had been told by the first firm of solicitors that he had consulted that there would be no need for him to report on 23 September 1991 because he had applied for political asylum. He also then claimed to be a member of the Pakistani People's Party and claimed to be living still on money which he brought with him when he came to the United Kingdom. He said that he had lived at two addresses following the one which he had originally given in September 1991. At that stage his interviewer concluded that, as he had failed to abide by the terms on which he had been granted temporary admission, he was an illegal entrant for the purposes of section 33 of the 1971 Act and paragraph 9 of schedule 2. It was also concluded that he was an illegal immigrant because he had attempted to obtain entry to the United Kingdom by deceiving the original immigration officer as to his true intentions. He was given notice at that stage that he was regarded as an illegal entrant but, as his claim for political asylum was still outstanding, he was given a further period of temporary admission on conditions similar to those which had originally applied, namely to reside at an address on this occasion at Southall, not to enter employment and to report to the police at Southall police station. On 23 September 1992 the Secretary of State gave notice that he was minded to refuse the applicant's application for political asylum. It was noted that there had been no original application for political asylum and it was also noted that what the applicant had said on 6 March 1992, when he was interviewed about his involvement in politics in Pakistan, had to be set against the fact that the party to which he claimed to adhere had participated in the 1990 elections and that the applicant himself, having obtained a visa, had apparently been in no hurry to leave Pakistan. He was interviewed on that day so that he could be apprised of the views of the Secretary of State, and on that occasion he produced certain warrants which were apparently for his arrest but about which there were reservations. On 18 November 1992 the immigration service asked the appellant's solicitors to arrange for him to attend on 26 November and they made efforts to do so by writing to him at his last known address. But he did not attend on 26 November and enquiries then showed that he had broken the condition of residence by moving his address once again some three weeks earlier, but that he had been in the habit of returning to collect his mail. Once again, he was suspected of being in the car hire trade as a mini cab driver on this occasion and there was some suspicion that he was also claiming social security benefits. At some stage the evidence showed that he had also been convicted of an offence of theft for which he had been fined. On 28 November 1992 he was eventually located at another address at Featherstone Road in Southall. He said that he had not attended on 26 November because on that day he had been married to a lady who was of Tanzanian origin living in Leicester. He claimed that he had told the solicitors on 22 November what he proposed to do on the 26 and, when he was interviewed on 28 November, he said that he had also told his solicitors of his change of address. He said that he had lied originally to the immigration officer when he said that he was married, and certain enquiries were then made to see whether or not the marriage to the lady in Leicester had in fact been either concluded or consummated. The immigration officer at that stage on 28 November concluded that he was an illegal entrant, having twice broken conditions as to residence, and having lied as to his true intentions at the time of his original interview. Authority was then given, which we have produced at page 32 of the bundle before us, to the governor of Her Majesty's Prison, Pentonville, to detain the applicant because he was, in the view of the immigration officer who signed the authority, an illegal entrant, that authority being under paragraph 16 of schedule 2 of the Act. The matter then came before Owen J pursuant to an application which was initiated on 15 December 1992. The ground which was in the affidavit filed in support of that application was that the applicant was said to be not an illegal entrant. He also at that stage sought bail. The learned judge, when he heard the application, said that, as a result of the decision of this court in Taj Mohammed Khan, he was bound to hold that a man such as this applicant, granted temporary admission, who broke the conditions and then went to ground, thereupon became and thereafter remained an illegal entrant. The application for habeas corpus was therefore refused by the learned judge without prejudice to any question of jurisdiction. The material provisions of the statute which have to be considered in the context of this appeal begin with section 3(1) which, so far as material, provides as follows: "Except as otherwise provided by or under this Act where a person is not [a British citizen] -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; . . ." Then section 11(1) provides: "A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom . . . so long as he is . . . temporarily admitted . . . under the powers conferred by Schedule 2 to this Act." Section 26(1) provides that: "A person shall be guilty of an offence . . . (c) if on any such examination" -- and the type of examination referred to is that pursuant to schedule 2 -- ". . . he makes . . . to an immigration officer . . . a statement or representation which he knows to be false or does not believe to be true." Section 33(1) provides that: "'entrant' means a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means a person unlawfully entering or seeking to enter in breach of . . . the immigration laws, and includes also a person who has so entered;" Turning now to schedule 2, paragraph 16 of schedule 2 provides in subparagraph (1): "(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter." That was a provision which could have been invoked when this appellant first arrived in the United Kingdom and was indeed invoked on the night of 5 September 1991. Turning to paragraph 16, sub-paragraph (2) provides: "A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given." Paragraphs 8 to 14 deal primarily with the removal of persons refused leave to enter and illegal entrants. In particular, paragraph 9 provides: "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)." Paragraph 8(1) deals with the position where a person arriving in the United Kingdom is refused leave to enter and the directions which may then be given. Finally, paragraph 21 of schedule 2 provides: "(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him. (2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer." On behalf of this appellant, Mr Shrimpton submits, first of all, that he should not be regarded as an illegal entrant as a result of anything that happened on 5 and 6 September 1991. That was when he was being interviewed when he first arrived in the United Kingdom. Clearly, there was evidence available to the immigration officer who had to make the necessary decision in the present case that at that time this appellant was lying. He admitted lying about his matrimonial status, and it was at least an inference that he was lying about his intentions when he said that he was coming to the United Kingdom merely for a short holiday. That was clearly a view open to the immigration officer and one which, on the information before us, was taken by him on behalf of the Secretary of State. But, submits Mr Shrimpton, that of itself is not enough. It is insufficient simply to demonstrate that a person who is being interviewed in that situation has not been telling the truth. That does not amount to him being or becoming an illegal entrant. He is at that stage, submits Mr Shrimpton, not seeking to enter for the purposes of section 33; that is a provision which should only be related to some form of clandestine entry. In my judgment, that is not a proper approach to plain statutory words. The appellant, when he lied to the immigration officer on 5 and 6 September 1991 about his marital status and about his intentions, committed an offence contrary to section 26(1) of the 1971 Act. He was, therefore, a person seeking to enter in breach of the immigration laws and consequently, by reason of the definition in section 33(1), an illegal entrant. I find it impossible to confine any interpretation of the wording of section 33(1) in the way for which Mr Shrimpton contends, having regard to the decision of the House of Lords in the case of Khawaja [1984] AC 74. So, in my judgment, from 6 September 1991 onwards, this appellant was and remains an illegal entrant, and it is impossible to say that the Secretary of State does not have the power to treat him as an illegal entrant and a person to whom, therefore, the provisions of section 33 of the 1971 Act apply. That section provides, of course, that a person who is in that position shall not enter the United Kingdom unless given leave to do so and this appellant, in my judgment, may therefore be detained in the way in which he is being detained at the present time. On behalf of the Secretary of State Mr Singh puts his case in an alternative way. What he submits is that on 6 September 1991 this appellant did not, for the purposes of the 1971 Act, enter the United Kingdom. He was temporarily admitted under schedule 2, and temporary admission does not amount to entry, as one can see from the wording of section 11(1). By virtue of paragraph 21(2) of schedule 2 he was thereafter at large in the United Kingdom, but he was subject to restrictions as to the residence, employment and reporting imposed when temporary admission was granted. On 9 September 1991 he left his address and was therefore in breach of the immigration laws, specifically paragraph 21(2), and indeed he repeated that kind of activity on a number of subsequent occasions. He therefore became at that stage an illegal entrant within the definition of section 33(1) and, submits Mr Singh, there is the simple matter of statutory interpretation in respect of which it is unnecessary to have regard to authority. Mr Shrimpton submits that one should not approach the statutory wording in that way, that the power to treat a person as an illegal entrant who may be summarily taken out of the jurisdiction is a draconian power and that these statutory provisions should not be interpreted so as to authorise the Secretary of State to use that power simply because, as he puts it, an entrant has failed to attend as required, being perhaps an hour late, on an occasion when he has been required to attend at a police station. He points out, rightly, that in that situation it would be open to the Secretary of State, pursuant to paragraph 21(1) of schedule 2, to take the applicant for entry back into detention or, under section 24(1)(e), to institute criminal proceedings. Those would be lesser approaches and, having regard to the availability of those alternatives, Mr Shrimpton submits that the statutory provisions on which Mr Singh relies should not be so construed as to give rise to the situation where, simply because of his failure to comply with conditions attendant upon temporary admission, the applicant is treated as an illegal entrant who may be detained and eventually taken out of the country. However, Mr Singh is able to pray in aid to some extent the decision of the Divisional Court in Yemi Tejuoso of 3 October 1975. I say to some extent because in that case the court did not have to decide the point which is now before us, namely whether or not breach of a condition in relation to temporary admission was in fact something which gave rise to the status of being an illegal entrant. That was one of the alternatives open to the court on that occasion. What was said by O'Connor J, giving the decision of the court, was this: "It may be that technically she became an illegal entrant when she absconded from London Airport. It may be that technically she did not become so until her adjudication was finally dismissed against her in September of 1974." In that situation it seems to me that it is not possible to regard that case as an authority which is of any particular assistance to us. A case which is of slightly greater assistance is R v Secretary of State for the Home Department ex parte Taj Mohammed Khan which came before this court on 2 July 1985 and was reported in [1985] Imm AR 104. There the facts were somewhat similar, but the way in which the case was presented was that the male entrant to the United Kingdom had subsequently married and the principal argument which was advanced on his behalf was that, although he had only had temporary admission, he had nevertheless been admitted in a temporary capacity for the purposes of paragraph 126 of HC 169 and, therefore, he fell outside, as Mr Shrimpton would describe it, the somewhat draconian provision to which I have referred. Nevertheless, the court seems to have proceeded upon the basis that, if that argument could not be made good, his appeal was bound to fail. What the Master of the Rolls said at page 107 was this: "It is to be noted that what is contemplated here is temporary admission to the United Kingdom without leave to enter or remain. This is a species of extended port area and is a 'without prejudice' admission to the United Kingdom. A man is entitled physically to enter the United Kingdom but, read with section 11, it is quite clear that he is not deemed to be an entrant for immigration purposes. So thus far Mr Khan is in great difficulties, because there is no possible basis in the statute for his claiming a right to enter." So it may be argued, and is argued by Mr Singh in the present case, that there is no possible basis for the appellant with whom we are concerned to enter. Later in the judgment at page 109 the Master of the Rolls said: ". . . when he entered on temporary admission, he was still in the position of one who had been refused leave to enter. He was, to use the words of paragraph 21(2) of the 2nd schedule, 'at large in the United Kingdom' by virtue of that paragraph; and when he absented himself in breach of all the conditions and went to ground, he thereupon became an illegal immigrant, which status he holds to this day." It seems to me at any rate that the argument there presented by the Master of the Rolls is one which can clearly be applied to the present case, even though the principal decision in Taj Mohammed Khan related to paragraph 126 of HC 169 and, accordingly, I accept Mr Singh's submission that he can draw some support from that authority. In those circumstances, it seems to me that, whichever way this case is put, one is driven to the conclusion that this appellant became an illegal entrant either on 6 September 1991 when he lied to the immigration officer, or on 9 September 1991 when he moved his address and therefore was in breach of the conditions of his temporary admission. He therefore became a person liable to be detained under the authority of an immigration officer pursuant to paragraph 16(2) of schedule 2 of the 1971 Act, and there is nothing unlawful about his detention. For those reasons, I would dismiss this appeal.

Judgment Two:

EVANS LJ: I agree that this appeal should be dismissed. The judgment of Owen J is securely based, in my view, on the first of the two grounds dealt with by my lord, Kennedy LJ: that is to say, the deception of the immigration authorities which either is not disputed or which is clearly beyond dispute in the present case. As to the other ground with which my lord has dealt, I admit to some reservation and express no concluded opinion. If it is correct that the detention is justified on this ground, it follows that persons who are granted temporary admission become illegal immigrants on breach of any restriction and, by virtue of that failure to comply with the restrictions, liable to detention and even to removal from this country, even if the failure was accidental or was temporary or even due to circumstances beyond their control. Since this issue is not crucial to our decision in the present case, I say no more than this. I am not sure that failure to comply with those restrictions amounts to a breach of the immigration laws for the purposes of the definition of illegal entry in section 33(1) of the 1971 Act. This case is about detention, but it is also about removal from this country, and I notice that the terms of the notification given to the applicant at page 15 of our bundle, dated 6 September 1991, although warning him that he is liable to be detained, nowhere suggest that failure to comply with the restrictions will have the consequence or the likely consequence that, in addition to being detained, he might be removed from this country. I express those reasons shortly, but they have no effect upon my overall conclusion, which is that this appeal should be dismissed as my lord has said.

Judgment Three:

SIR THOMAS BINGHAM MR: I agree with both the points argued on behalf of the Secretary of State to justify the detention of the appellant. The first point depends primarily on section 11 of the Immigration Act 1971, and the curious position of a person who has been temporarily admitted to this country subject to conditions. Such a person enters the country physically, but is deemed not to do so for immigration purposes. So long as he obeys the conditions he is not an illegal entrant; indeed, he is not an entrant at all. But his right to be here is conditional, and a breach of conditions, in my view, destroys the statutory presumption that such a person has not physically entered. That in turn has the result that he has entered at a time when he has not received leave to do so, and in those circumstances, as I understand the Act, he becomes an illegal entrant within the meaning of the Act and liable to be treated as such. That is the view which the courts appear to have taken on previous occasions and, in my view, they were correct. The second point depends on the appellant's attempt to deceive the immigration authorities on his arrival at Heathrow. Was he in those circumstances seeking to enter? The answer, in my judgment, must be "Yes". Despite Mr Shrimpton's argument, I can see no room for any other answer. Was he seeking to enter in breach of the immigration laws? In my view, the answer must again be "Yes", and that brings the appellant squarely within the definition of "illegal entrant" in section 33(1) of the Act. Again, as I understand the Act, he is liable to be treated as such. Even if both those arguments were wrong, the appellant would be subject to detention under paragraph 16(1) of schedule 2 to the Act, but that is not the basis upon which the Secretary of State has detained him, nor the primary basis upon which he seeks to justify his detention. In my judgment, accordingly, the Secretary of State does show lawful warrant for the detention of this appellant. Mr Shrimpton would have wished to raise various arguments about the jurisdiction of this court to grant an order of habeas corpus, had the invalidity of the appellant's detention been demonstrated. It seemed to us preferable to investigate, first, the validity of the detention and leave the question of jurisdiction to be considered if it arose, having regard to the decisions which we have reached on the detention itself. We have not thought it necessary to delve into the question of jurisdiction, and we therefore express no opinion on that question one way or the other.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Ramsbottom & Co, Blackburn; Treasury Solicitor
 

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