R v. Secretary of State for the Home Department, Ex parte Goordin and Other

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte GOORDIN AND OTHERS, TH/29404/78

Queen's Bench Division

[1981] Imm AR 24

Hearing Date: 17 February 1981

17 February 1981

Index Terms:

Illegal entrant -- Deception at port of entry -- Entry as visitor granted for limited period requested -- Intention to settle in the United Kingdom not disclosed to immigration officer -- No application made for extension of limited leave -- Decision by Secretary of State some years later to make deportation orders for overstaying the limited leave granted on entry -- Whether Secretary of State entitled to say that he deception on entry was not such as to vitiate the leave granted entirely -- Deceptions as to identity, status and qualification for entry the classic types vitiating entry -- Appellant on the facts in this case reasonably treated as an overstayer liable to deportation and not as an illegal entrant -- Zamir v Secretary of State for the Home Department (HL), [1979-80] Imm. A.R. 203, considered -- Ex parte Anand (CA), d 3.12.79 (unreported), applied -- Immigration Act 1971, s 3(5)(a).

Deportation -- Decision to make deportation order for overstaying several years -- Entry as visitor in 1972 by concealment of intention to remain permanently -- Whether this type of deception to gain entry vitiated the leave granted so as to make removal as "illegal entrant" the proper course rather than deportation for overstaying -- Whether claim to be illegal entrant could properly be advanced by appellant as being more advantageous to him (i.e. with view to applying for "amnesty") -- Anand's Case (CA, d 3.12.79) applied -- Immigration Act 1971, s 3(5)(a).

'Amnesty' for illegal entrants -- Entry gained as visitors in 1972 by concealment that real intention was settlement -- Going 'to ground' subsequently -- Claim that their deception made appellants "illegal entrants" and consequently not liable to deportation several years later as overstayers -- Such claim (with view to advantage of possible 'amnesty') properly not entertained on the facts in their case -- Ex parte Anand (CA), d 3.12.79 (unreported) applied -- Immigration Act 1971, s 3(5)(a), s 33.

Judicial review -- Divisional Court -- General principles -- Decision of Secretary of State challenged -- Question whether his decision so unreasonable that the Court should interfere -- Question whether he had misdirected himself in law -- Decision that certain types of deception to gain entry was not such as to make the applicants "illegal entrants", not unreasonable -- No misdirection in law.

Held:

Mr and Mrs G and their chilren, citizens of Mauritius, gained entry to the United Kingdom in 1972 as visitors by concealing from the immigration officers concerned that their intention was settlement. They never left, and in 1976 the Secretary of State decided to deport Mr G (under s 3(5)(a) of the Immigration Act 1971) for overstaying the leave to enter granted to him. When the Secretary of State's decision eventually reached Mr G (he having 'gone to ground') as also later similar decisions to deport his wife and children, Mr G sought to claim that he and his family were not liable to deportation in that their deception to gain entry made them "illegal entrants" and, as such, they would be eligible for the "amnesty" which the Secretary of State had announced in April 1974. Applications for leave to appeal out of time against the proposed deportations were refused by an adjudicator and by the Tribunal on the ground that there were no special circumstances within r 11(4) of the Immigration Appeals (Procedure) Rules 1972 making it just and right to allow the appeals to proceed, and the the appeals were accordingly dismissed under r 12(e)(ii). On Mr G's claim that the family should be treated as "illegal entrants" the Secretary of State maintained that the deception practised was not the type of deception which would result in the leave to enter being invalid. On an application to the Divisional Court for judicial review of the Secretary of State's decision it was submitted for the family that the words of Lord Wilberforce in Zamir's Case n1 meant that if to gain entry there had been any deception at all in relation to a material fact, that vitiated the leave granted and rendered a person an "illegal entrant". For the Secretary of State a submission which had been made in Zamir's Case was repeated, namely that "not every deception of an immigration officer would vitiate the leave apparently given to enter under s 3(1)(a) of the Immigration Act 1971": the classic decisions were as to "identity, status and qualification for entry". n2 (p 27, post). n1 Zamir v Secretary of State for the Home Department, [1980] AC 930; [1979-80] Imm. A.R. 203; [1980] 2 All ER 768. n2 Argument only reported in [1980] AC, at p 938. Held: (i) Zamir's Case (in the House of Lords) was clear authority for saying that a material deception in relation to a person's status vitiated a person's leave to enter, for in that case the applicant had told the entry clearance officer (in Pakistan) that he was unmarried but had not later disclosed to the immigration officer at the port of entry that the situation had changed in that he had married since the grant of entry clearance to him (under a rule which required, inter alia, that he be unmarried); Zamir's Case was not authorty for the much wider proposition that any material deception would vitiate a person's leave to enter. (p 28, post). Per curiam: The question might depend on how one defined "material", but there must be areas of deception which did not necessarily involve making the leave which had been granted as a result of that deception a wholly void leave. (ii) Applying on this judicial review by the Divisional Court the general principles enunciated in 1947 in the Wednesbury Case n3, it could not be said that the Secretary of State's decision -- namely, that certain deceptions aimed at particular matters, aimed at certain ends, did not amount to making a person an "illegal entrant", whereas other kinds of deception did -- was so unreasonable that the Court should interfere. n3 Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223; [1947] 2 All ER 680, per Lord Greene MR. Per curiam: As long as the Home Secretary's decision could not be challenged on the basis that no reasonable Home Secretary could not come to it, or that he had misdirected himself on a point of law, it was a decision which must stand and with which this Court would not interfere. (iii) As to the application to be treated as "illegal entrants" rather than as overstayers, the Court was bound by the decision of the Court of Appeal on almost indistinguishable facts in Anand's Case n4, in which Lord Denning MR said that the applicants, having come ostensibly as visitors, having overstayed, being illegally here, and having exhausted all the appeal machinery, they could not "throw over all that... and say 'We were deceiving you all the time'". n4 Ex parte Manmohan Singh Anand & anr (CA), 3.12.79, unreported.

Counsel:

L. Blom-Cooper QC and D. Medhurst for the applicants. Simon Brown for the respondent. PANEL: Forbes J

Judgment One:

FORBES J: In this matter Mr Blom-Cooper moves for judicial review in the shape of a declaration, an order of prohibition and an order of certiorari concerned with a decision to deport six people -- Mr Denray Goordin and his wife and their four children. Mr Goordin, a citizen of Mauritius, arrived in this country on 1 March 1972. He said he wanted to come for a visit of two weeks. He was granted leave to enter on that basis and he never left. On 18 December 1972 his wife and children arrived. They too were allowed into this country on the basis that they were coming in as visitors. They never left either. All the applicants now say that they obtained that leave by deception because they had no intention of leaving. They wanted to come into this country permanently to settle. On 18 August 1977 application was made to the Home Secretary for leave to remain permanently. The ground given at that stage was that the applicant (Mr Goordin) had been staying in this country for five years. On 24 October 1977 the Home Office wrote back saying that the Home Secretary had made a decision to deport Mr Goordin on 29 April 1976. A similar letter was subsequently sent to the wife on 27 February 1978. The applicants all appealed against that decision to deport them. One of their problems was that as the decision had been made on 29 April 1976, the Home Secretary at that stage not having any idea where any of the applicants lived, because they had 'gone to ground', they were out of time for appealing because, having gone to ground and not having received the notices, they did not know they existed. But they appealed. Their grounds of appeal were with regard to Mr Goordin that he had been five years in this country, and for Mrs Goordin and her children that they had no knowledge of the decision and had taken the earliest opportunity to appeal; that there was hardship and discontinuation of the children's studies, and so on. They fell at the first hurdle, because they could not get any grounds of appeal on their feet unless they were given leave to appeal out of time. That matter was determined as a preliminary issue by the adjudicator. In order (I think quite properly) to apprise himself of all the circumstances, the adjudicator went into the merits. There is no doubt at all that he found that deception had been practised on the respective immigration officers. I have no doubt at all, both from what he said and from the document put in by the Home Secretary that the Home Office too considered that deception had been practised on the immigration officers in order to obtain leave to enter as visitors. As I understand it, the Home Office have maintained throughout this case that there are different types of deception. Not all types of deception result in a leave to enter being invalid. The matter is put quite succinctly (Mr Brown for the Home Secretary directed my attention to it) in the argument for the Home Secretary in the leading case of Zamir v Secretary of State for the Home Department n5. It is sufficient if I read a sentence or two: n6 "It is not contended that every deception of an immigration officer would vitiate the leave apparently given to enter under s 3(1)(a). The classic decisions are as to identity, status and qualification for entry". Then the same matter is referred to a little further down. n5 [1980] AC 930; [1979-80] Imm. A.R. 203; [1980] 2 All ER 768. n6 The argument is reported in [1980] AC, at p 938. That approach of the Home Secretary seems to me to have been continued and insisted upon throughout the correspondence in this case. Admittedly some of the correspondence was concerned with a matter which has not strictly arisen, namely whether or not any or all of these applicants fell within the terms of an amnesty announced by the Home Secretary of 11 April 1974 and 29 November 1977. n7 I may perhaps be forgiven for assuming, as I did at the start of this case, that that was the main part of the argument of the applicants by the fact that it is precisely that matter which is the first item of relief sought in the declaration in the notice of motion. Be that as it may, it is accepted by Mr Blom-Cooper that the terms of the amnesty, or indeed the question whether the amnesty applies are quite irrelevant to anything I have to decide. n7 The announcements were made by the Home Secretary in the House of Commons. The following is an extract from the Parliamentary Reports (Hansard 29.4.77, columns 125-127): "Mr Merlyn Rees: On 11th April 1974 my predecessor informed the House that he would not exercise powers, conferred on the Home Secretary under the Immigration Act 1971, to remove a limited class of Commonwealth citizens and citizens of Pakistan -- that is, only those who entered this country in breach of the immigration laws before 1st January 1973 -- because the provision of the Act putting them in jeopardy was retrospective. At that time and until recently it was generally thought that the administrative power to remove an illegal entrant was confined to those who avoided going through the immigration control. Recent court judgments have declared that illegal entrants also include those who gained admission through the control but by deception of various kinds. This has always been a criminal offence, carrying with it liability to deportation on the recommendation of the court -- but not, it was hitherto thought, removal under administrative powers. "The power to remove illegal entrants contained in the Immigration Act 1971 will not be used to send away Commonwealth citizens and citizens of Pakistan who entered the United Kingdom illegally before 1st January 1973, provided that the necessary conditions, set out below, are met. A person is an illegal entrant if he evaded the immigration control altogether. The courts have recently declared that he is also an illegal entrant if he gained entry by deceiving the immigration authorities about his identity or entitlement to enter. This applied not only where he carried out the deception himself, but also where it was carried out by someone on his behalf, whether or not he knew of the deception. "Examples of entry by deception are the use of a forged or fraudulently obtained passport; claiming falsely to be a dependant of someone lawfully settled here; claiming falsely to have previously been lawfully settled in the United Kingdom; and withholding from the immigration officer facts which are material to a person's entitlement under the immigration laws.

"Anyone who believes that he qualifies to apply for his position to be regularised under the terms of this announcement must do so before the end of 1978. Applications received on or after 1st January 1979 will not qualify. However, illegal entrants who would have qualified had they applied in time will be dealt with on the individual merits of circumstances at the time, and will only be removed from the United Kingdom on the personal authority of a Minister."

What Mr Blom-Cooper says (put quite baldly) is this: that any deception practised on the immigration officer in relation to any material fact, as a result of which leave to enter is given, is sufficient to vitiate that leave and that therefore any person who entered under the cover of such a vitiated leave is not an overstayer, but an illegal entrant. n8 Consequently he says s 3(5)(a) does not apply because it only applies to those who overstay a valid leave and in consequence the Home Secretary has no power to deport under s 3(5) at all. He may of course order the removal of persons as illegal entrants, but he cannot purport to deport them under s 3(5)(a). That seems to me to be the argument. I am not going to go through all the cases, but that argument depends in the main on certain passages from the speech of Lord Wilberforce in the case of Zamir to which I have just referred. In the interests of brevity I shall not refer to all the passages, but it is true that Lord Wilberforce (who in effect gave the opinion of their Lordships because they all concurred) put it in strong terms: n9

"In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance. He is seeking a privilege; he alone is, as to most such matters, aware of the facts."

A little higher on that page n10 he said:

"At the very lowest, an intending entrant must not practise a deception; it has over and over again been decided, and the correctness of these decisions is incontestable, that deception vitiates the permission to enter."

n8 The term "illegal entrant" is defined in s 33 of the Immigration Act 1971 as follows: "'illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered". n9 [1980] AC at p 950; [1979-80] Imm. A.R. at p 209; [1980] 2 All ER at p 773. n10 On p 208 in [1979-80] Imm. A.R. Mr Blom-Cooper says that means that any deception at all in relation to any material fact renders a person an illegal entrant because the words of Lord Wilberforce are wide enough to cover that. I do not think that one can read Zamir in that way. Zamir was a case in which the applicant, having correctly told the entry clearance officer that he was unmarried, when he appeared before the immigration officer seeking entry, failed to tell him that that situation had changed because he had been married about a fortnight before. n11 That was a deception in relation to his status. That case is clear authority, it seems to me, for saying that such a deception is one which vitiates that leave. It is not authority, in my view, for the much wider proposition for which Mr Blom-Cooper contends that any material deception vitiates the entry. The question may depend on how one defines "material" but I think Mr Brown is right in saying that there must be areas of deception which do not necessarily involve making the leave which is granted as a result of that deception a wholly void leave. n11 Under para 39 of HC 81 the appellant could only be granted entry clearance if, inter alia, he was an unmarried son of his sponsor. The second point which Mr Brown takes is again from Zamir. It seems to me that it is right. At first I thought Mr Brown was advancing the contention that the whole question whether a person is an illegal entrant or not is solely a question for the Home Secretary to decide and that the courts cannot interfere. When I heard his subsequent submissions I do not think that he was seeking to say that at all. If he was, it is a proposition from which I would wholly dissent, but I do not think he was doing so. He was relying in fact on a long passage that covers two and a half pages in the report of Lord Wilberforce's speech in Zamir n12 on the first of the two questions of law which Lord Wilberforce sought to answer: "The first is what is the basis for any judicial review if the Secretary of State, or an immigration officer acting on his behalf, concludes"... and I emphasize the following words... "that there has been deception". Lord Wilberforce in the end considered (if I use the shorthand I think everyone will know what I mean) that the only case in which the Home Secretary could be upset in his decision when there has been deception is if it could be said that he had gone wrong under the general principles enunciated in the Wednesbury case. n13 It seems to me that this court could not possibly say that, in deciding that certain deceptions aimed at particular matters were deceptions which did not in the Home Secretary's view amount to making a person an illegal entrant, while other kinds of deception did, was the decision of so unreasonable a Home Secretary that this court should interfere. I would have thought in those circumstances that the Home Secretary was right in taking the view that he was entitled to say in a case such as this that those deceptions practised by these applicants did not amount to such a deception as to vitiate their leave entirely and that therefore he was entitled to regard them as overstayers rather than as illegal entrants. n12 [1980] AC at pp 947-949; [1979-80] Imm. A.R. at pp 206-208; [1980] 2 All ER at pp 771, 772. n13 Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223; [1947] 2 All ER 680, per Lord Greene MR. Finally Mr Brown's point is that this case is entirely covered by the decision in a case called Anand. n14 That was a case which is not reported, but of which there is a transcript, both of the proceedings in the Divisional Court and in the Court of Appeal. The facts are almost indistinguishable from the facts in this case. The only matter which Mr Blom-Cooper's ingenuity can seize on is that although in the Anand Case the tribunal had decided that there was a deception, there was no indication that the Home Office itself had accepted that there was a deception, whereas in this case there is such an indication. The Divisional Court refused leave on the ground very largely that the case fell "squarely within the terms of s 3(5)(a)"; that is, that Mr and Mrs Anand were overstayers and not illegal entrants, and they added: "We do not think you can get yourself out of those terms by pleading your own case to your own advantage". n14 R v Secretary of State for Home Affairs, ex parte Manmohan Singh Anand and Kulwant Kaur Anand (DC d 2.10.79; Ex parte Mr & Mrs Anand (CA) d 3.12.79. Mr and Mrs Anand entered the United Kingdom ostensibly as visitors before 1 January 1973. They went 'to ground'. They were made the subject of deportation orders in 1976 and 1977. They sought to be treated as illegal entrants and eligible for the "amnesty" under the terms announced by the Secretary of State on 11 April 1974. (For those terms and for other references to the operation of the "amnesty", see Purewal v Secretary of State for the Home Department [1977] Imm. A.R. 93). When the matter went on appeal to the Court of Appeal, the Master of the Rolls, in a very short judgment, said (and it is sufficient to read only the very last sentences): "I think the short answer to the whole of this application is what has been given in the course of the discussion. These people cannot take advantage of their own wrong and deception in this way. They came here ostensibly as visitors. They overstayed. They are illegally here. They have exhausted all the appeal machinery. I do not think it is in any way possible for them now to throw over all that has been done and say, "We were deceiving you all the time". Those words apply absolutely in every respect to this case. Here too they came ostensibly as visitors. They overstayed. They are illegally here. They have exhausted all the appeal machinery. It seems to me that I am bound by that decision in any event even if I did not want to be. For the reasons that I have advanced it seems to me that in this case Mr Brown's contentions are right. The Home Secretary was entitled to take the view that certain types of deception, deception aimed at certain ends, do not vitiate the leave, whereas others do. As long as that is a decision which cannot be challenged on the basis that no reasonable Home Secretary could come to it or that he has misdirected himself on a point of law, then it is a decision which must stand and with which this court cannot interfere. I do not think that it can be said that the Home Secretary acted in that way unreasonably or that he misdirected himself in law at all. These applications must be dismissed. n15 n15 This decision was affirmed by the Court of Appeal (Eveleigh, Brandon, O'Connor LJJ) on 31.7.81 (unreported).

SOLICITORS:

Bernard Sheridan & Co., Treasury Solicitor.