Ghulam Yasin v. Secretary of State for the Home Department

GHULAM YASIN
(Appellant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

Court of Appeal: Kennedy, Morritt, Potter LJJ Illegal entrant-evidence-caution at interview incorrectly translated by interpreter-whether evidence in interview obtained by oppression-whether court should have excluded evidence of interview. Police & Criminal Evidence Act 1984 ss. 76, 78, 82. Appeal from dismissal by Latham J of application for judicial review of decision by the Secretary of State that the appellant was an illegal entrant. On arrival in the United Kingdom in 1994 the appellant sought and was granted leave to enter as a visitor. Six months later he was arrested and interviewed as a suspected illegal entrant. The interpreter at the interview incorrectly interpreted the caution administered to the appellant. The appellant subsequently claimed that had he been told the true wording of the caution he would have said nothing in the interview. Counsel argued that in those circumstances the court at the hearing before Latham J should have set aside the record of the interview and not taken its content into account in assessing whether, following Khawaja, the Secretary of State had proved to the requisite standard that the appellant was an illegal entrant: he relied on the provisions of the Police & Criminal Evidence Act 1984, submitting that the interview evidence had been obtained by oppression.

Held:

1. The provisions of the Police & Criminal Evidence Act applied only in criminal proceedings. The learned judge had been entitled to receive the notes of the interview, giving them the weight he considered appropriate.

2. The appellant, following Bugdaycay could not argue that had he told the truth to the immigration officer, he would still have been granted leave to enter.

S Kadri QC and S Gill for the applicant

S Catchpole for the respondent

Cases referred to in the judgments:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. Bugdaycay and ors v Secretary of State for the Home Department [19871 1 AC 514: [1987] Imm AR 250. R v Fulling [1987] QB 426: [1987] 2 All ER 65. R v Khan [1996] 3 WLR 162: [1996] 3 All ER 289. R v Secretary of State for the Home Department ex parte Ghulam Yasin [1996] Imm AR 62.

KENNEDY LJ:

This is an appeal from the decision of Latham J who on 27 July 1995 refused an application for judicial review to quash a decision of 3 November 1994 by the Secretary of State to issue a notice to the appellant hat he was an illegal entrant and to authorise the appellant's deportation. Leave to appeal was given by the full court on 9 November 1995. As a result of changes in the appellant's firm of solicitors and, it appears, some misunderstanding between the solicitors acting for him and the court's office, the case was not set down for hearing as it should have been. Earlier today, we extended time for setting down and so the matter is now properly before as. The appellant was born in Pakistan in 1959. Thereafter, he went to Bahrain. In October 1993 he applied for and was granted entry clearance to come to the United Kingdom for a visit. At that time he sought to enter this country for a period of one month to further his business as a jeweller and also to make a social visit, for example, to museums. He did not come at once. He went to Pakistan. There, unfortunately, he was suspected of murder and found it necessary to go into hiding. He says that he hid for a period of about five months and then, encouraged by his wife and still in possession of the entry clearance he obtained in Bahrain, he made his way to the United Kingdom. He arrived in the United Kingdom on 27 March 1994. At that stage he told the immigration officer that he proposed to stay for a period of two weeks, that the purpose of his visit was business and a holiday and that he proposed to go to the Hilton Hotel in London. He was given standard entry clearance for a period of six months and that was upon the usual condition in relation to employment. It seems that he then went straight to Manchester. Thereafter he sought asylum. That application was rejected but nothing now turns on that. On 13 November 1994 or thereabouts he was arrested whilst working in Manchester in a take-away. He was then interviewed as a suspected illegal entrant. For the purposes of that interview it was considered necessary to have the services of an interpreter. Unfortunately, at the beginning of the interview when the immigration officer administered the caution that caution was mistranslated by the interpreter. Apparently, what happened was that the questioner said:

"You do not have to say anything unless you wish to do so. What you do say may be given in evidence."

The interpreter translated that thus:

"What you say must be the truth. Besides the truth you must say nothing, If you do not say anything we will go to the courts."

The appellant says now that if he had been told accurately what the immigration officer said he would have taken advantage of the caution and said nothing. In paragraph 3 of his affidavit he says this:

"If I had been told that I did not need to say anything I would not have done so as I was not familiar with the process, being a country where I knew few people and where I was unable to speak the language. However, I was afraid that I would be taken to court if I failed to answer the questions put to me."

The interviewer, it seems clear, was himself wholly unaware of the mistranslation. Reading the body of the interview thereafter, it is clear that there was no undue pressure of any kind exerted by the questioner when the questions were being asked. In interview the appellant was asked about what had happened when he arrived in the United Kingdom. The questioning and the answers went thus:

"Q. How long did you tell the Visa Officer you would stay in the United Kingdom?"
A. Two to three weeks.

Q. For what reason?
A. I want to visit and I had a problem as well.

Q. Can you develop that point?
A. Mentioned to the Visa Officer 2-3 weeks to stay.

Q. Were you going to visit anyone in particular.
A. No.

Q. Did you give an address?
A. No. I just mentioned Hilton Hotel.

Q. In London?
A. Yes.

Q. Did you show him a ticket?
A. I showed the ticket to the Immigration Officer.

Q. Is that a single ticket or a return ticket?
A. A return ticket."

Later:

"Q. How much money did you show the Immigration Officer?
A. I got £l,000, I got the receipt as well.

Q. What did you do when you left the airport?
A. I came to coach station.

Q. Where did you go from there.
A. Then I took Manchester ticket.

Q. And where did you go when you got to Manchester?
A. I met somebody.

Q. What happened then?
A. I wanted to stay where I could find a stay cheap."

A little later, in relation to what had happened whilst he was in Pakistan or Faisalabad-

"Q. Did they ever arrest you for it?"
(that is to say, the suspected murder.)
"A. They tried to find me, but I..."

the tape recorder is defective,

"no intention of coming to London, but I was hiding.

Q. What would happen if the police found you?
A. My wife said that as I'd got the visa I'd better run.

Q. What would the police do if they found you?
A. They would have put me in jail.

Q. So your wife told you that as you had a visa you should go?
A. Yes."

Later on:

"Q. Did you tell the Visa Officer about these accusations of murder and the fact that the police were looking for you?
A. No. I didn't mention to him.

Q. Did you tell the Immigration Officer when you arrived here?
A. No.

Q. Why not?
A. It was my mistake.

Q. What do you think the Immigration Officer would have done if you'd told him you were wanted for arrest?
A. I do not know.

Q. Do you think that a country would let somebody who was accused of murder into another country?
A. My head wasn't working that time.

Q. Why didn't you stay in London?
A. I heard in London it was a bit expensive, here it is cheaper in Manchester.

Q. How long did you think you would have to stay in England when you came? To avoid this trouble?
A. I wanted to stay about 3-4 months.

Q. What did you think would happen after that?
A. If things had been alright I would have gone to either another country or I would have one back to Pakistan."

A little later:

"Q. How much money did you have in your possession when you were arrested?
A. I got it from my friend to send to my wife."

The immigration officer said:

"So he understands English, because you didn't interpret that?"

that is to say, the immediately preceding answer. The interpreter observed:

"Yes, he does. He says he doesn't understand English."

At the end of the interview the questioner asked:

"Q. Can you answer my question. The question is: you've told me you told the Immigration Officer you would stay two weeks. You've told me that you thought you would stay for four months and see how things were. Why didn't you tell the Immigration Officer what you've told me now?
A. It's my fault.

Q. Can you answer the question. Why didn't you tell the Immigration Officer?
A. I made a mistake.

Q. Why didn't you tell him? Were you afraid of being refused entry?
A. I made a mistake."

The appellant says now that he did not intend to stay longer than a couple of weeks when he was before the immigration officer, but that he formed that intention, that is to stay somewhat longer, after he had actually entered this country. What he says is this:

"At no point in the interview did I say that before I came to the United Kingdom I intended to remain three or four months. This only became my intention when after my arrival in this country I learned that I was in danger if I returned to Pakistan."

I have to say that that does not seem to sit easily with the number of occasions during the course of the interview when that particular topic was explored and which I have cited. His current interpreter Mr. Salim says that in relation to one occasion there was a mistranslation of a question that was posed to the interpreter, and what the applicant was asked by the interviewing officer was this:

"How long did he think he would have to stay in England when he came?"

which was interpreted thus:

"When you came here how long did you think you would stay in England? How many months would you stay' How many months?"

Even accepting that alteration, it seems to me that the body of the interview, looked at as a whole, speaks for itself. At the end of the interview the immigration officer considered all the circumstances - that is apparent from the affidavit placed before the court on behalf of the respondent-and concluded that, had the immigration officer on entry been aware of the true facts and intentions as admitted now by the applicant, he would have been bound-to set aside the visa and refuse leave to enter as a visitor. Mr. Kadri takes exception to the fact that was said not by the immigration officer who dealt with the applicant at the time of his entry but by a subsequent immigration officer who came to the file at a later stage. It is an observation that speaks for itself, having regard to the totality of this matter. Mr. Kadri before us takes two substantial points. First, he submits that the mistranslation of the caution amounted to oppression so far as his client was concerned and that we should judge this matter against the background that the appellant now says that had the caution been properly translated he would have said nothing at all. Accordingly, he submits that Latham J was wrong to have regard to what, according to the record, the appellant said when he was interviewed on 13 November. The whole of that information should, Mr. Kadri submits, have been put to one side. He invites our attention to the provisions of the Police & Criminal Evidence Act 1984 and, in particular, to section 76 and section 78. He points out rightly that when the officer was interviewing the appellant he was not only considering the possibility of the appellant being regarded as an illegal entrant and so subject to deportation, but he was also investigating a possible criminal offence. Illegal entry is a criminal offence under the Immigration Act of 1971. Therefore, Mr. Kadri submits that appropriate safeguards were required to be taken. As Mr. Catchpole on behalf of the respondent has pointed out, one has to start here from the proposition that in English law evidence is admissible if is relevant: see R v Khan [1996] 3 WLR 162. In this particular case, if one is invited to look at section 76 and section 78, it is important to have regard to the fact that those sections do not apply in relation to civil proceedings. Section 76(2) provides, so far as material, that-

"If... it is represented to the court that the confession was or may have been obtained-

(a)by the oppression of the person who made it;

…

the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

The definition of "proceedings" in section 82 of the Act makes it clear that for the purposes of the 1984 Act "proceedings" means criminal proceedings. A similar submission can be made in relation to section 78. Accordingly, when considering this matter what Latham J had to do was to have regard to the information before him, to admit that information if it was relevant and then to evaluate it, to weigh it. If answers were obtained by oppression, then in civil proceedings they would have very little, if any, weight. There is a helpful definition of oppression to be found in the case of R v Fulling [1987] QB 426 in which it is suggested that in the criminal jurisdiction that word should be given its ordinary dictionary meaning of "the exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens "in circumstances which almost always entail some impropriety by the interrogator. One only has to read that to appreciate that it is a definition which goes far beyond the facts of the present case where, in what would appear to be a degree of incompetence on the part of the interpreter, a caution properly administered by the immigration officer was mistranslated. Although that, undoubtedly, is something that should not have happened and may well have had an adverse effect upon the mind of the interviewee, the whole of the interview which was conducted thereafter was, on the face of it, conducted in a perfectly proper manner. There is no complaint anywhere in this case to suggest otherwise. In those circumstances it seems to me that the judge in the court below was entirely right to have regard to the contents of the interview and then to look at the test which was set out by the House of Lords in R v Secretary of State for the Home Department ex parte Khaivaja [1984] AC 74. Mr. Kadri QC invited our attention, in particular, to that part of the speech of Lord Scarman where he said (at page 113) that what had to be considered in deciding whether or not there was an illegal entry was a "high degree of probability which is appropriate to what is at stake", the Secretary of State having the burden of showing that the entry was illegal, showing, it on the balance of probability and showing, it having regard to the nature and gravity of the issue which fell to be determined. That was precisely the way in which the teamed judge approached the matter in the present case. I, for my part, find no substance in the first ground of appeal which Mr. Kadri has sought to advance before us. The second around of appeal is rather different. Mr. Kadri QC submits that the answers which were given did not create or should not have created an impression that the facts were materially different from the reality. He accepts what is said by Lord Bridge in the case of Khawaja [1984] 1 AC 74 and invited our attention to it, Lord Bridge said (page 118):

"... the question whether a person who has obtained leave to enter by fraud ‘has entered in breach of the Act' is purely one of construction. If the fraud was a contravention of section 26 (1)(c) of the Act, the provisions of which I have already quoted, and if that fraud was the effective means of obtaining leave to enter-in other words if, but for the fraud, leave to enter would not have been granted-then the contravention of the Act and the obtain, of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was ‘in breach of the Act'."

Mr. Kadri's submission, as I understood it, was to this effect that although it may be said that when he presented himself to the immigration officer this appellant was sparing with the truth, if he had in fact told the whole truth he would nevertheless have been granted leave. I, for my part, find that a very difficult proposition to accept. He presented himself as a man who was coming to the United Kingdom for a short time for a holiday; he had ample funds; he was going to stay in London-, he was going to look at museums and then he was going to depart. In reality, he was, even on what he now says, in no such position. He was a man suspected of murder in Pakistan who was anxious to enter this country for a prolonged period in order to keep well out of the way of the Pakistani authorities. Although it can be argued that if he had said all of that he would have obtained some form of leave, the fact is that that profits him not at all because as was said by Neill LJ in R v Secretary of State for the Home Department ex parte Bugdaycay [1986] 1 All ER 458, 463:

"In my judgment it is impermissible to extend the concept of material facts so as to allow an intending entrant to seek leave to enter for a particular purpose on the basis of a statement of particular facts and then later, on admitting that the purpose had been misrepresented and the facts had been misstated, to contend he was not an illegal entrant because if he had told a different story and had put forward a different reason for his visit he might well have been given leave.

The question whether facts are material or decisive has to be answered in the context of the leave which was in fact given. The 1971 Act makes this clear."

I, for my part, would respectfully adopt those words. They seem to me to dispose entirely of Mr. Kadri's second submission which, like the first, I find to be of no substance. For those reasons I would dismiss this appeal.

MORRITT LJ:

I agree.

POTTER LJ:

I agree.

DISPOSITION

Appeal dismissed

Solicitors:

Maliks, Manchester; Treasury Solicitor
 

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