R v. Immigration Appeal Tribunal, Ex parte Abdul Karim

R v IMMIGRATION APPEAL TRIBUNAL Ex parte ABDUL KARIM

Queen's Bench Division

[1986] Imm AR 428

Hearing Date: 9 July 1986

9 July 1986

Index Terms:

Deportation -- post-entry deception -- use of a passport issued to another person with a substituted photograph -- whether that constituted continuing deception by false representation that the passport was genuine -- whether such conduct can ground a decision by the Secretary of State to initiate deportation proceedings pursuant to s 3(5)(b) of the Immigration Act 1971. Immigration Act 1971 ss 3(5)(b), 15(3), 15(7), 19.

Held:

The applicant came to the notice of the immigration authorities when enquires were made, on another matter, at a restaurant where the applicant was working. When questioned by the immigration officer the applicant produced a passport which the Secretary of State contended had been issued to another person and in which, the photograph of the applicant had been inserted. That passport contained the endorsement on which the applicant relied to show he was in the United Kingdom with leave. The Secretary of State was persuaded that the passport was false. Accordingly he concluded there was post-entry deception by representation that the passport was genuine. The Secretary of State suspected, but accepted that he could not prove on the test required in Khawaja, that there had been deception on entry. On the basis of the post-entry deception alone, he decided to initiate deportation proceedings under s 3(5)(b) of the 1971 Act. Before the Tribunal it was contended, on the basis of dicta in Kawaja, that the powers of the Secretary of State under s 3(5)(b) could not be used in the circumstances of the case. The Tribunal, in a preliminary ruling concluded that his power could be so used. On application for judical review that argument was renewed. Held: 1. Following ex parte Cheema, the Secretary of State's powers under s 3(5)(b) could be used in cases where post-entry deception was proved. 2. In the present case, assuming that it could be shown to the satisfaction of the appellate authorities that the applicant had represented that he held a genuine passport which in fact was a forgery, there had been continuing, post-entry deception. 3. Although the applicant had not, until questioned by the immigration officer, made any positive claim on the basis of the passport, that did not enable his conduct to be distinguished, in its effect, from that which justified deportation in ex parte Owusu-Sekyere. 4. In relation to the speeches in Khawaja, it was in any event to be noted that someone whose only claim to remain in the United Kingdom depends on a forged passport, to which he has no lawful right whatever, can hardly be described as 'a perfectly respectable established resident'. 5. Although the Court had not heard full argument on the issue, it seemed the right approach for the Secretary of State to be obliged to prove the post-entry deception on which he would rely 'to a high degree of probability'.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Cheema [1982] Imm AR 124 Khawaja v Secretary of State for the Home Department [1982] Imm AR 134 R v Immigration Appeal Tribunal ex parte Ghazi Zubalir Ali Khan [1983] Imm AR 32 R v Immigration Appreal Tribunal ex parte Owusu-Sekyere [1986] Imm AR 169

Counsel:

A Davidson QC and AM Azhar for the applicant;I Ashford-Thom for the respondent PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: This is a motion pursuant to leave granted by Woolf J on 19 March 1985 seeking judicial review of a ruling by the Immigration Appeal Tribunal dated 5 February 1985. By that ruling the Tribunal decided upon a preliminmary issue of law that the Secretary of State's decision on 15 September 1983 to make a deportation order against the applicant properly fell within the provisions of section 3(5)(b) of the Immigration Act 1971. That subsection, as amended, provides that a person who is not a British citizen shall be liable to deportation "(b) if the Secretary of State deems his deportation to be conducive to the public good." This case concerns the limits of the power to decide to make a deportation order under that provison. The Secretary of State's decision was in these terms:

"You claim to have been admitted unconditionally to the United Kingdom on 26 October 1972 as a returning resident, but you have no evidence that you are lawfully resident here. The Secretary of State has reason to believe that the passport on which you claim to have been admitted in 1972 contains your improperly substituted photograph and that it was originally issued to another person. The Secretary of State is satisfied that you have attempted to circumvent the immigration control and he deems it conducive to the public good to make a deportation order against you."

The background to that decision was as follows. The applicant came to the attention of immigration officers on 22 March 1983 when they visited a restaurant in Hornchurch in connection with another matter. The applicant told the immigration officers that he had first arrived in the United Kingdom in 1964, that he had returned to Bangladeil of St in 1970 and that he had re-entered the United Kingdom in 1972 and remained here ever since. In support of his claim, the applicant produced a duplicate medical card issued on 9 June 1978 bearing a national insurance number which showed that it had been issued after January 1977. He also produced two passports, one of which, issued in Sylhet in Bangladesh in 1972, contained a returning resident entry clearance issued on 2 October 1972 and a landing stamp endorsement dated 26 October 1972. The Secretary of State's case is that the Sylhet issued passport belonged not to the applicant but to an Abdul Karim of Birmingham who had been lawfully resident in the United Kingdom since 1964 and that the applicant's photograph been substituted in the passport for that of Mr Karim as the rightful holder. The Secretary of State surmises that the applicant probably arrived in the United Kingdom around 1977, but based the case against him essentially on his having tampered with and used a passport which is not his. The Home Office initially treated the applicant as an illegal entrant on the basis that he used the forged passport to secure entry. The matter was then reconsidered, however, in the light of the House of Lords decision in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765. As is now well-known, it was there decided that to make good his power to remove someone as an illegal entrant the Secretary of State has to satisfy the court to a high degree of probability that the person in question is indeed an illegal entrant. The Home Office, although confident that they could prove to the necessary standard the fact that the applicant's passport here was a forgery, in that it was issued to someone else and bears merely the applicant's photograph, realized and indeed conceded that they could not prove to what I may call the Khawaja standard that it had been used by the applicant to gain entry and thus they could not establish that he was an illegal entrant. The Secretary of State accordingly determined to treat him as a post-entry deceiver and thus as someone amenable, as the Home Office contends, to a section 3(5)(b) notice. The applicant's case before the tribunal, and urged afresh before this court, is that even if the Secretary of State proves all the facts which he asserts (and for the purposes of deciding the point of law raised in these proceedings it must be assumed that he will, although I should note in this judgment that the Secretary of State's contentions are hotly disputed) he is still not entitled to proceed against the applicant under section 3(5)(b). That provision, asserts Mr Davidson before this court, is confined to cases of substantial misconduct during the person's stay in the United Kingdom and is certainly not available to the Secretary of State as an alternative means of removing someone for conduct which relates essentially to his original entry, albeit the Secretary of State is forced to concede that he cannot prove as much. Counsel relies above all on a powerful dictum of Lord Bridge in Khawaja where he said:

"The power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in s15(3), 'that his deportation is conductive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature', although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry. On the other hand, no one has suggested in argument that a non-patrial who has obtained leave to enter by fraud should not be liable to expulsion when the fraud is exposed, nor doubted that one would expect the Act to provide for such a case. That provision, I conclude, has to be found, if anywhere, in the statutory machinery for the removal of an illegal entrant."

Although it is unnecessary for the purposes of this judgment to decide just how far that dictum goes, it is, I think, necessary to bear in mind at least this, that section 15(3), to which Lord Bridge referred, is the provision disentitling a person served with a section 3(5)(b) notice from appealing at all against such a decision. Section 15(7) of the Act provides that others than those expressly referred to in section 15(3) who are served with a section 3(5)(b) notice may indeed appeal, albeit in the first instance to an Immigration Appeal Trbiunal, as in this very case, rather than to an adjudicator. Thus the statutory scheme plainly envisages a wider class of person whose deportation the Secretary of State may properly regard to be conducive to the public good than those dealt with by subsection (3). As recently as 13 March 1986, Mann J decided in this Court a case which raised a markedly similar point of law to that with which the court is now concerned, namely R v Immigration Appeal Tribunal, ex parte Owusu-Sekyere. That decision is, I ma told, subject to an appeal to the Court of Appeal and indeed at the outset of these proceedings Mr Davidson upon that very ground sought, although ultimately he did not press for, an adjournment. I decided that the cases were not in fact wholly identical. Indeed I thought it might be helpful for the Court of Appeal, assuming that whoever failed before me were to appeal, to have both sets of facts before it when deciding the crucial question of law. In any event I concluded that it would be a waste of the Court's time and a waste of public money to adjourn a challenge to what is anyway only a ruling on a prelininary point of law. All that I need relate of the facts in ex parte Owusu-Sekyere is that the applicant there, having originally secured short term leave of entry, followed by a number of extensions, married a British Citizen. This was not be it noted, a marriage of convenience. He was thereafter granted indefinite leave to remain on the basis of that marriage, but -- and this was crucial -- by employing deception as to the state of the marriage as at the date of his application for settlement. Mann J recognised the force of Lord Bridge's dictum in Khawaja, but regarded himself as bound by the Court of Appeal decision in R v Immigration Appeal Tribunal, ex parte Cheema [1982] Imm AR 124. The Lord Chief Justice in that case said:

"The subsection" -- namely section 3(5)(b) -- "is aimed [counsel says] at public menace and should not and cannot be used to catch a mere deceiver. I disagree. Marriage is still, like it or not, one of the cornerstones of our society, despite recent trends of behaviour. If a person chooses to use a ceremony of marriage or the status simply as a dishonest and deceitful way of avoiding the law -- the immigration law or any other law -- then I consider it properly open for the Secretary of State to come to the conclusion that that person's continued presence in this country is not conducive to the public good, and that conclusion is well within not only the literal meaning of the Act, but also within the spirit of the Act."

The substance of Mann J's decision is to be found in the following passage. He said:

"That is a decision" -- he was referring there to ex parte Cheema -- "binding upon me, which is against [counsel for the applicant]. True it is that it antedates the decision in Khawaja by about one month. It is also true that what was there concerned was a marriage, whereas what we are here concerned with is an allegedly deceitful statement. I cannot distinguish between a marriage for the purpose of obtaining some form of settlement and a deceitful statement for the purpose of obtaining some form of settlement. Each is aimed at an evasion of the law and the rules. Each was a case concerning post-entry activity. I propose to follow the decision in Cheema. It may be for consideration elsewhere and hereafter whether Cheema can stand with the observations of Lord Bridge in Khawaja, or whether the observations of Lord Bridge are confined, as Stephen Brown J thought they were, to statements made upon entry."

I interpolate to say that that is a reference to the decision of Stephen Brown J (as he then was) in R v Immigration Appeal Tribunal, ex parte Ghazi Zubalir Ali Khan [1983] Imm AR 32 in which he had expressed the view that post-entry deceptions could justify proceedings under section 3(5)(b). Mann J's judgment continued:

"It may be that that is the case because Lord Bridge refers to the respectable resident, that is to say the person who, as a resident, has been respectable, although guilty possibly of fraud upon entry. If that be the case, then it could be said in relation to this applicant or indeed any other applicant who is guilty of deceit after obtaining entry, that they are not respectable residents. I accordingly hold that it was within the scope of the Secretary of State's powers to make a deportation order in this case. It is common ground that the onus of supporting the deportation order before the tribunal is on the Secretary of State. It is also common ground that the onus has to be discharged upon a high degree of probability. (See Lord Scarman in Khawaja at page 784, letter C.)"

Mr Davidson, besides questioning the correctness of the decision in Owusu-Sekyere, also seeks in any event to distinguish it in two respects. Firstly, he says that his client's case in no way revolves around marriage, whereas in Owusu-Sekyere the deceitful statement related to the crucial question of the state of the marriage. I find that a quite hopeless argument. Mann J, in the passage I have cited, expressly found no distinction between "a marriage for the purpose of obtaining some form of settlement and a deceitful statement for the purpose of obtaining some form of settlement". Secondly -- and to my mind with somewhat greater force -- Mr Davidson contends that in that case the applicant took substantially more positive steps by way of post-entry deceit than did his client. Mr Owusu-Sekyere specifically initiated an application founded in deceit for settlement leave. Of what post-entry deceit was this applicant guilty? Counsel for the respondent contends that he was guilty of a continuing deception, namely false representation that he has a genuine passport (a passport which is his own) which is not a forgery and which was regularly obtained. That indeed was the very deception, says Mr Ashford-Thom, which he sought to perpetrate upon the immigration officers who interviewed him in regard to other matters on 22 March 1983 at the Hornchurch restaurant. Thus, contend the Home Office, this is not a case where they need assert or rely upon any fraud at the time of entry. It is sufficient for their purpose to postulate, as their provable evidence necessarily does, that at some stage the applicant knowingly came into possession of a forged passport and began to rely on it to assert an entitlement to remain here. If, as here, there is a continuing deceit then, asserts Mr Ashford-Thom, whether or not it procured an unlawful entry and so renders the applicant vulnerable to removal as an illegal entrant under the Secretary of State's administrative powers, it falls within the scope of post-entry conduct which on the present authorities entitles the Secretary of State to exercise the section 3(5)(b) power. I have concluded that this argument is correct. I recognise that in one sense it involves the Secretary of State using the section 3(5)(b) power as an alternative to his removal power over illegal entrants, but on analysis this is perhaps no bad thing. After all, the section 3(5)(b) power, unless exercised in a section 15(3) class of case, is substantially less Draconian in its application than the removal power. It attracts the right of appeal in this country. It was indeed for that very reason that counsel for the applicant in Khawaja sought to invoke it and sought to assert that it was the more appropriate route by which to remove from this country those who had procured entry by deceit. It must be borne in mind that anyone actively continuing in his deceit in order to assert a continuing righ to remain in this country can hardly invoke the sympathy which informed Lord Bridge's dictum. After all someone whose only claim to remain in the United Kingdom depends upon a forged passport, to which he has no lawful right whatever, can hardly be described as "a perfectly respectable established resident". Of course, even if, as I believe, that is the correct approach to the construction and application of section 3(5)(b) of the Act, two matters must be borne in mind. Firstly, as was common ground before Mann J and as indeed the tribunal stated in their determination in the instant case, the Secretary of State will need to prove the facts underlying his decision to serve a section 3(5)(b) notice to a high degree of probability. Although Mr Ashford-Thom places a question mark over the correctness of that view and it is not, of course, necessary to reach any final conclusion upon it for the purposes of these proceedings so that I have not heard full argument upon it, I am bound to say that it seems to me the right approach. Secondly, it will be for the Immigration Appeal Tribunal, determining the appeal here under section 15(7)(a) and having regard to the provisions of section 19 of the Act, to exercise their own discretion in deciding whether in all the circumstances, even assuming that the post-entry deception is proved to the necessary standard, the applicant's deportation should be regarded as conducive to the public good. In my judgment it would be appropriate for the Tribunal when exercising that discretion to have regard to the precise nature of the applicant's deception and its role in achieving his continued stay in this country. Not least, of course, it will be material to consider to what extent, if at all, it precludes him from being regarded as "a perfectly respectable established resident". At the same time, however, it will be necessary for the Tribunal to bear in mind that if the Secretary of State's allegation of forgery and deceit is made good then the applicant has no possible basis for asserting a valid settlement leave. It would thus be difficult to see why he should be better placed than if he were an overstayer and thus amendable to a notice of intention to deport under section 3(5)(a) of the Act. Those considerations, however, are matters for the Tribunal to whom this matter must now return, subject to any appeal. The only decision to which I arrive is that the Tribunal correctly ruled that the applicant's appeal was not bound to succeed as a result of the preliminary objection he took to the propriety of a section 3(5)(b) notice in the particular circumstances of this case. Accordingly, the application before me fails and must be dismissed.

DISPOSITION:

Application dismissed.

SOLICITORS:

BC Mascarenhas, London; Treasury Solicitor

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