R v. Chief Immigration Officer of Manchester Airport, Ex parte Insah Begum

R v Chief Immigration Officer of Manchester airport, ex parte Insah Begum

QUEEN'S BENCH DIVISION

[1972] 1 All ER 6, [1973] 1 WLR 141, 136 JP 87

Hearing Date: 8 OCTOBER 1971

8 OCTOBER 1971

Index Terms:

Commonwealth immigrant - Admission - Refusal of admission - Notice of refusal - Delivery of notice to immigrant - Notice delivered by immigration officer to immigrant's legal adviser at airport - Immigrant illiterate and having no knowledge of English - Immigrant in another part of airport at time notice delivered - Whether necessary that notice should be delivered by hand to immigrant personally - Commonwealth Immigrants Act 1962, Sch 1, para 2 (1).

Held:

B, a Pakistani citizen who was illiterate and had no knowledge of English, arrived at Manchester airport on 14th September 1971. She alleged that she was going to join her husband who was resident in England. She was seen by an immigration officer at 14.15 hours on that day. She handed him a passport which had what purported to be an entry certificate to the UK granted to her by the authorities in Lahore. The certificate appeared to the officer to be a forgery. While enquiries were being made the immigration officer served B with a notice under para 1 (2) of Sch 1 a to the Commonwealth Immigrants Act 1962 requiring her to submit to a further examination. The interview was suspended at 14.30 hours. Thereafter the immigration officer, through an interpreter, examined B from 18.00 hours to 19.15 hours, and again for a third time from 20.30 hours to 21.00 hours. The investigation was suspended until the following day, 15th September, to enable the immigration authorities to get some Telex information from Lahore. When received this information confirmed the immigration officer's suspicions that the certificate was a forgery and, at 13.30 hours on 15th September, it was decided to refuse B entry into the UK. At that time she was in another part of the airport and in her absence the appropriate notice of refusal under para 2 (1) of Sch 1 b to the 1962 Act was served on her solicitor who raised no objection. B applied for an order of certiorari to quash the decision of the immigration authorities contending (i) that the requirements of para 2 (1) of Sch 1 had not been complied with, in that the notice of refusal had not been handed to her in person; (ii) that as the investigations involved a series of interviews, the initial notice under para 1 (2) of Sch 1 a should have been renewed at the close of each interview; and (iii) that as there was an interval of more than 12 hours between the end of the third interview at 21.00 hours on 14th September and the notification of refusal at 13.30 hours on 15th September the notice of refusal was invalid as given out of time under para 2 (3) of Sch 1 c. a Schedule 1, para 1 (2), is set out at p 7 j, post b Schedule 1, para 2 (1), is set out at p 8 g, post c Sechedule 1, para 2 (3), is set out at p 9 f, post Held - The application would be refused for the following reasons -- (i) although the purpose of para 2 of Sch 1 was to ensure that the notice should be delivered to the immigrant by hand and not sent through the post or in any other form of communication, since B was illiterate and quite incapable of dealing with her affairs at all, there was nothing wrong in handing the notice to someone authorised by her to receive it; it was an inevitable inference that the legal adviser who was representing her and handling the whole affair on her behalf should be regarded as a person having authority to receive the notice (see p 8 j to p 9 b and p 10 a, post). (ii) although the investigation took place in a series of interviews it was not necessary that the notice under Sch 1, para 1 (2), requiring the immigrant to submit to further examination should be renewed in a further notice of that kind at the close of each section of the interview; the only function of the notice under Sch 1, para 1 (2), was to provide for the contingency that the examination could not be completed within the time specified in that paragraph; since the examination had in any event been completed within that time no situation ever arose in which the notices under para 1 (2) would have had any relevance to all (see p 9 d and e and p 10 a, post); (iii) as the examination of the applicant continued right up to and including the time when refusal was given at 13.30 hours on 15th September the refusal was not given out of time under the terms of para 2 (3) of Sch 1 (see p 9 h and j and p 10 a, post).

Notes:

For examination of Commonwealth immigrants, see Supplement to 5 Halsbury's Laws (3rd Edn) para 1514. For the Commonwealth Immigrants Act 1962, Sch 1, paras 1, 2, see 4 Halsbury's Statutes (3rd Edn) 47, 48.

Introduction:

Motion for certiorari. This was an application by way of motion on behalf of Insah Begum for an order of certiorari to bring up and quash a decision made on 15th September 1971 by an immigration officer at Manchester airport whereby he refused her admission to the United Kingdom. Her grounds for the application were, inter alia, (i) that the notice of refusal made under para 2 of Sch 1 to the Commonwealth Immigrants Act 1962 was invalid because the immigration officer handed the notice to the applicant's solicitor and not to the applicant herself; (ii) that the initial notice under para 1 (2) of Sch 1 to the 1962 Act for her to submit to a further examination should have been renewed at the close of each section of the interview, and (iii) that the notice of refusal was invalid as given out of time under para 2 (3) of Sch 1 to the 1962 Act. The facts are set out in the judgment of Lord Widgery CJ.

Counsel:

G S Khan for the applicant. Gordon Slynn for the chief immigration officer. PANEL: LORD WIDGERY CJ, BRIDGE AND SHAW JJ

Judgment One:

LORD WIDGERY CJ. In these proceedings counsel moves on behalf of the applicant, Insah Begum, for an order of certiorari to bring up and quash a decision made by Her Majesty's immigration officer at Manchester airport on 15th September 1971 whereby admission to this country was refused to the applicant. The notice of motion asks for other relief, which request is not pursued before us, and it also raises a number of grounds which counsel for the applicant has found it impossible to proceed on. The matter therefore lies before us in a relatively small compass. The applicant arrived at Manchester airport from Pakistan on 14th September 1971. She held herself out as a married woman, the wife of a person already resident in this country, one Arif Hussain, using a passport which had in effect what purported to be an entry certificate into this country granted to her by the authorities in Lahore. She was seen by an immigration officer at 14.15 hours on 14th September and, to the eye of the immigration officer, the entry certificate appeared to be a forgery. He appreciated that this would involve considerable enquiries, and might involve the expenditure of some time, and he immediately served her with a notice under para 1 (2) of Sch 1 to the Commonwealth Immigrants Act 1962, which in its original form provided:

'A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours from the time when he lands in the United Kingdom unless, upon being examined within that period, he is required in writing by an immigration officer to submit to further examination.'

The period of 24 hours has since been amended to 28 days n1, and the purpose of the provision both in its original and amended form, quite evidently is that unless proceedings can be completed within that limit of time, the onus is thrown on the immigration officer of serving a notice requiring the would-be immigrant to submit to further examination. n1 See s 4 of the Commonwealth Immigrants Act 1968 In perhaps an excess of caution, such a notice was served really as soon as the difficulties in this case became apparent. The interview beginning at 14.15 hours was suspended at 14.30 hours, but later in the same day further enquiries took place between the immigration officer and the applicant through an interpreter. The period of that examination was from 18.00 hours until 19.15 hours. I might have said that the applicant is illiterate and had no knowledge of the English language, and at an early stage her solicitor and later her counsel were brought to the airport to assist her and the enquiry. The second interview, if that is the right word, having finished at 19.15 hours, there was a further interview between 20.30 and 21.00 hours, and the circumstances in which that interview terminated are described by Mr David Ian Fuller, one of the immigration officers concerned, in his affidavit at para 34. Speaking of this last interview he states:

'At the conclusion of this interview which was finished at about 21.00 hours I told Mr. Anwar Salamat Ali and the applicant through Mr. Kumar that I considered that the entry certificate was a forgery. I also told them that I was not satisfied as to the authenticity of the marriage. I further told them that I was expecting a reply to a Telex that had been sent to the Entry Certificate Officer at Lahore about the entry certificate and that no decision would be taken to admit or to refuse to admit the applicant until this had been received.'

Accordingly, at 21.00 hours on 14th September the investigation was suspended until the following day when the Telex from Lahore was received, and since the terms of the Telex confirmed the suspicions of the immigration officer that the entry certificate was a forgery, they decided to refuse entry to the applicant at 13.30 hours on 15th September. Thereupon the appropriate notice under para 2 of Sch 1 of the 1962 Act was prepared, and it was handed by the officers to Mr Bookin, who was the applicant's solicitor, and who was present at the time. Just to complete the picture at this point the applicant herself was not present, although somewhere within the airport confines. Present at the moment when the certificate of refusal was issued were the immigration officers, the solicitor to the applicant and her counsel. Schedule 1, para 2 (1), is in these terms:

'The power of an immigration officer under section two of this Act to refuse admission into the United Kingdom or to admit into the United Kingdom subject to conditions shall be exercised by notice in writing; and subject to sub-paragraph (2) of this paragraph, any such notice shall be given by being delivered by the immigration officer to the person to whom it relates.'

In fact, as I have already recounted, the notice was handed not to the applicant but to her solicitor, who raised no objection at the time, and indeed on some aspects of the evidence may have appeared to welcome it being given to him rather than anybody else. Counsel for the applicant having as I have said abandoned a number of matters which were to be ventilated, according to the terms of the notice of motion, has really taken three points. He says first of all that the certificate of refusal was of no effect because it was handed to the solicitor and not delivered to the applicant, that is to say to the person to whom it relates. To my mind it is quite clear that the draftsman of these regulations wished to emphasise that the notice was to be delivered and not sent through the post, or in any other form of communication, and no doubt it is right to apply the paragraph strictly to this extent, that in normal circumstances where the applicant is in a position to receive the notice and capable of understanding what it means, a wise immigration officer will follow the literal letter of Sch 1, and deliver it by hand to the applicant. But it seems to me impossible to hold that in these not uncommon cases, where the applicant is illiterate and quite incapable of dealing with her affairs at all, that there should be anything wrong in handing the certificate over to someone authorised by her to receive it. It seems to me an inevitable inference in such a case as the present that the legal adviser, who was representing the applicant and who was handling the whole affair on her behalf, should be regarded as a person having authority to receive the notice. Accordingly in my judgment there is nothing in the first point. The second point is that the investigation having taken place in a series of interviews, in the manner which I have described, it is said that the initial notice under Sch 1, para 1 (2), of a requirement for the applicant to submit for further examination should have been renewed in the form of a new notice of that kind at the close of each section of the interview. Accordingly it is argued that when the initial interview finished at 14.30 hours, a notice should have been served, as indeed it was, and that a later notice should have been served at the end of the second and third interviews. For my part I find no foundation whatever in this argument. There seems to me to be no function in the notice referred to in para 1 (2) of Sch 1 except to provide for the contingency where the examination is not to be completed within the time specified in that paragraph, that is to say the initial 24 hours, now 28 days. If in fact the investigation is concluded and a decision to admit or refuse is made within that period, it seems to me that such a notice has no function, and it is a matter of total irrelevance whether it was ever given at all, or once or more than once. In any event I do not subscribe to the suggestion that new notices are required as the enquiry itself goes on, but the short answer in the present case is that no situation ever arose in which the notices under para 1 (2) would have any relevance at all. The third and the last point made by counsel for the applicant is under para 2 (3) of Sch 1 which, still dealing with a notice of refusal, provides:

'Subject to the following provisions of this Schedule, a notice under this paragraph [i e a notice of refusal] shall not be given to any person unless he has been examined in pursuance of paragraph 1 of this Schedule, and shall not be given to any person later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph.' The argument here is that the examination under para 1 which undoubtedly took place in respect of the applicant was concluded at 21.00 hours on 14th September at the end of the third interview to which I have referred. Counsel for the applicant points out that between that hour and 13.30 hours on the following day, when refusal was in fact notified, there was an interval of more than 12 hours, indeed an interval of 16 1/2 hours, and so he says that the notice of refusal was invalid in that it was given out of time under the terms of para 2 (3).

This argument depends entirely on the validity of counsel for the applicant's submission that the examination was concluded at 21.00 hours on the evening of 14th September. Counsel for the respondent's argument is that when regard is had to Mr Fuller's explanation of the deferment until the following day and of the desire to receive information by Telex from Lahore, the irresistible conclusion is that the examination had not been concluded on the previous evening, and for my part I find that conclusion entirely acceptable. I do not think the examination was concluded on the previous evening at 21.00 hours, any more than it had been at the end of either of the earlier interviews. I think that the examination was still in force right up to and including the time when notice of refusal was given at 13.30 hours on 15th September. In my judgment the three points which have been clearly and economically made by counsel for the applicant are each and severally without foundation, and I would find it necessary to refuse this application.

Judgment Two:

BRIDGE J. I entirely agree.

Judgment Three:

SHAW J. I also agree.

DISPOSITION:

Motion dismissed.

SOLICITORS:

Simpson, Silvertown & Co, agents for Amelan & Roth, Manchester (for the applicant); Treasury Solicitor.