R v. Immigration Officer, Ex parte Ajekukor

R v AN IMMIGRATION OFFICER Ex parte AJEKUKOR

Queen's Bench Division

[1982] Imm AR 3

Hearing Date: 1 February 1982

1 February 1982

Index Terms:

Passport -- forged stamp in showing grant of indefinite leave to enter -- Applicant apparently not to blame for forgery -- Whether there was a remedy for her in High Court when refused re-admission as returning resident -- Whether breach of natural justice by immigration officer -- Whether duty on him to enquire further when satisfied stamp was a forgery.

Held:

The applicant, a citizen of Nigeria, was granted entry in 1973 to join her husband, a student. The marriage broke down and she filed a petition for divorce in November 1979. In July 1981 she left the UK for a week and on her return she was refused entry, although granted temporary admission, since the stamp in her passport had been found to be a forgery. In considerable detail she explained that she was in no way responsible for the forgery, and that it was probably the work of her husband. The present application was for an order of certiorari or mandamus to quash the decision of the immigration officer. Held: (i) There was no remedy for the applicant in the High Court. (ii) The immigration officer was not, after being given no explanation for the forgery, under a duty to enquire further and his failure to do so was no breach of natural justice.

Counsel:

James Dean for the applicant. Alan Moses for the respondent. PANEL: Glidewell J

Judgment One:

GLIDEWELL J. This is an application for an order of certiorari or mandamus to quash a decision of an immigration officer who, at Heathrow Airport on 16th July 1981, refused leave to a Mrs. Ajekukor to enter the United Kingdom. She has, since that time, been granted temporary consent to remain in the country pending the final determination of the matter. She claims that she ought to have been granted leave because she had been ordinarily resident here for more than two years before 16th July 1981 -- indeed, all together now for something over eight years. If she is right in saying that she has, within the meaning of the statute, been ordinarily resident here for that length of time, then she should indeed have been granted leave to re-enter the United Kingdom because she had only been out of the country for something like a week as part of a church organisation party which had visited Jerusalem and some other of the sights surrounding that holy city. Her basis for saying that she had indeed been ordinarily resident here is that when she first arrived in this country in September of 1973, she was granted indefinite leave to remain and thus she has since been in the United Kingdom continuously as a result of that permission. The Home Office case is that she cannot have been or, at any rate, it is most unlikely that she was granted unlimited leave to remain, and the stamp in her passport to which she points as evidence, or to which she initially pointed as evidence of that indefinite leave, which is a forgery say the Home Office. With that brief summary of the facts, I had better go on to consider the matter in a little more detail. In 1972 Mr. Ajekukor, who was married to the Applicant in the previous December, came to this country to pursue a course of business studies. His wife, who was pregnant with their first child when he left, saw him off and, she says -- and nobody doubts this -- the arrangement between them was that when he thought it was suitable for her and the baby to join him he would send for them, and send for us, she says, he did in the following July. On 25th August, 1973 she left Nigeria with her first child who was then just 10 months old. If the husband by some means had acquired the right to settle here, and Mrs. Ajekukor had wished to join him and to settle herself, under the rules for immigration then in force she would have required an entry permit, which would have had to be obtained before ever she left Nigeria. She does not for a moment suggest that she did obtain such an entry permit. On the other hand, if what she was doing was coming to join her student husband and to stay with him for as long as he was permitted to stay -- and if he had been permitted to enter as a student, he would have been permitted to enter for a limited period for as long as his course of study was expected to last -- then she also would normally have been admitted provided, in every other way, the immigration officer was satisifed as to her situation for the duration of her husband's stay. That, it seems, is the likely course which would normally have been pursued. Rule 22 of the relevant rules then in force, which were contained in House of Commons Paper 79, read so far as is material: "The wife of a person admitted as a student should be given leave to enter for the period of his authorised stay...." and then there are considerations about whether or not she should be allowed to take employment. Mrs. Ajekukor says that she did not travel directly to the United Kingdom. She travelled first to France, and the old passport that she produces contains in it a stamp showing that she arrived at Nice on the same day that she left Nigeria, 25th August, 1973. She says that she spent a couple of weeks with relations in Paris and she then crossed to England by train and boat. When she and the baby arrived at Folkestone she presented herself to the immigration officer, burdened with the baby in one hand and her hand luggage and her passport in the other. She presented the passport; he looked at it; he asked her what she was doing and she said she was coming to join her husband who was a student. He put a stamp in it and said "Have a nice stay", and in she came and here, until the events of last July, she remained. After a time, she obtained employment which, if she had been permitted in for a limited period as a wife of a student, she probably, though not certainly, would not have been permitted to do. In due course, a second child was born who incidentally, I suppose, has United Kingdom citizenship, and she has been here ever since. She says that when the jubiliation of rejoining her husband had died down a little, she handed him her passport for safe keeping and he said words to the effect "Well, that is splendid, they have given you indefinite leave to stay". She herself was not really very clear what that meant, according to her, and she did not really pay any attention to what was in fact in the passport. Unhappily, much more recently the marriage broke down. After initial trouble it broke down completely in the autumn of 1979, and she and her husband have not lived together since. She filed a divorce petition against him at the end of November of that year. I am not quite sure whether she has got a decreee or not, but it does not matter. He and she have now separated and she does not known where he is. The oldest child has gone back to Nigeria to live with relations there: the younger child, born in this country, is still here with her mother. Some little time after Mr. Ajekukor and his wife split up, she discovered that her passport was missing so she wrote, being concerned about this, or in some way got in touch with the police, saying that her passport had been stolen together with some other items from her flat. She says that mysteriously, about 15 months or so later, in the spring of 1981, she found that her passport had been put through the letter-box of the front door of her flat, but it had been maltreated in the sense that quite a lot of the pages in it were loose. Indeed, she says that "the pages were torn and crumpled up". She said that the reappearance "only helped to confirm my suspicion that my husband was the one who had removed it from our flat." She told the police that the passport had come back and they told her to tell the Nigerian High Commission, which she did. They cancelled the passport by putting "cancelled" stamps on, I think, every page, and issued her with a new one. On the last page of that old passport covered with a cancelled stamp is, indeed, what appears to be an entry stamp bearing the date 8th September, 1973, being consent to enter the United Kingdom at Folkestone, and since there is no limitation placed upon it it is a consent, on the face of it, to remain here for an indefinite period. When she left the country with the church party to which I have referred, she sensibly took with her both her new passport in which there was no entry permit of any sort stamped, and this old passport with the loose leaves containing this stamp on the back page. When she came back in she showed this to the immigration officer and he was immediately put on suspicion for the very good reason that the stamp that appears in that document is not an authentic immigration officer's stamp. It is, to the lay eye, a good copy of an immigration officer's stamp, but when examined in detailed there are a number of features about it that make it clear that it is a forgery, and Mr. Dean on behalf of Mrs. Ajekukor accepts that it is a forgery, and certainly accepts that the immigration officer was entitled so to decide. In fact, the immigration officers did not so decide immediately: they did consider that matter for some few days. Mrs. Ajekukor had an interview with a Mr. Stewart, an immigration officer at Terminal 3 at Healthrow, on 16th July. She had actually come back from Israel on 4th July. She gave him the details of the history to which I have referred. In the meantime, he had obtained copies of what is called the "stamping on book" for Folkestone for the week including 8th September, 1973. Comparison between the stamp in Mrs. Ajekukor's passport and the stamps contained in that book enables one to see the differences which are not perhaps immediately apparent but can readily be seen upon examination. He concluded, as I say, that this stamp was a forgery. Mrs. Ajekukor's case is, in effect, this. "I really did not know anything about immigration control at the time. All I was thinking about was that I was a young bride joining my husband, but now I realise that what I might reasonably have expected was to be given leave to stay in the United Kingdom for a limited period while my husband studied and no more. I am confident I was given indefinite leave. It must have been by mistake but I did not ask for it. I did not defraud anybody. The mistake is not my fault and I am entitled to take advantage of it". The Home Office case is "You were not given any such leave at all. We do not know whether you were given any leave to enter. Certainly there is no indication in any document that we have that you were. We have no record of your coming into this country. We did not know you were here until you went out to Israel, and the one thing on which you rely is clearly a forgery. Therefore, we cannot be satisfied that you were given any leave at all to enter this country, never mind leave for an indefinite period." Mr. Dean concedes that on 16th July, in the light of the information that was then before him, the immigration officer was entitled to come to the conclusion that indeed it was a forgery, and that she never had indefinite leave to be here. Before I go on, I must remind myself what my function is. I am not sitting as a Court of Appeal from the immigration officer. It is not my job to say that his decision was right or wrong. All I have the power to do is to say whether, on the material before me, he was properly entitled to come to the conclusion to which he did come, and as I have said Mr. Dean has conceded -- and rightly conceded in my view -- that there was material on which the immigration officer on 16th July last could come to the conclusion that Mrs. Ajekukor was not entitled to indefinite leave to be in this country. But, says Mr. Dean, the very odd circumstances of this case should have put the immigration officer on enquiry -- more enquiry than he made. Now that she has thought about it, it has dawned on Mrs. Ajekukor that what most probably happened is that her husband not merely stole her passport but deliberately perpetrated a most appalling fraud by removing from her passport the genuine stamp giving indefinite leave to be here, which she originally had, and substituted for it on a loose page another stamp which would fool her, because it looked very similar if she ever looked at it, but was in fact a forgery which would be recognised by the immigration authorities as being a forgery. The poor lady was put in the position that all unknowingly, if she ever went out of the country, she would be promptly refused entry when she came back in, and that this must be the result of a dastardly plot on the part of the husband. Mr. Dean says that though that explanation was not given on 16th July -- and indeed was not suggested until Mrs. Ajekukor swore an affidavit on 21st September of last year -- nevertheless the circumstances were all so odd that the immigration officer was under a duty to enquire further to seek to find Mr. Ajekukor, to press on with such enquiries as he could make and that his failure to do so was a breach of natural justice. I regret that I cannot accept that submission. In my view, not being given any explanation as to how what was clearly a forgery came to be in the passport, the immigration officer was not, in my judgment, under any duty to enquire further. He was not obliged to say "You forged this document"; he was not obliged to say "It is your fault the document is forged", but the unfortunate lady was, in his view, in possession of a forged document and not in possession of any evidence at all that she had ever genuinely been given an indefinite leave to be here, other than what she herself said about it. That being so, as I have already said, the immigration officer was entitled to reach the conclusion he did reach on 16th July. This is, as are so many immigration cases, a hard case for the Applicant. It is a very sad case. Whatever happened over eight years ago and whatever the truth of the matter the fact is that she has been here now for a long time. She has worked hard, no doubt honestly, and she is, I entirely accept, properly regarded as being a useful member of the community and a pillar of her church, and her younger daughter was born her and regards herself, I suppose, as British because she is. But she has no right to be here, or at least the immigration officer was entitled to decide she had no right to be here, and the application, I fear, must fail.

DISPOSITION:

Application dismissed.

SOLICITORS:

Nares and Merali; Treasury Solicitor.