R v. Secretary of State for the Home Department, Ex parte Ayoade Ayeni Olasebikan

R v Secretary of State for the Home Department ex parte Ayoade Ayeni Olasebikan

Queen's Bench Division

[1986] Imm AR 337

Hearing Date: 5 June 1986

5 June 1986

Index Terms:

Illegal entrant -- deception -- re-entry by overstayer to the United Kingdom after change of name and acquisition of new passport -- whether entry by deception although no untruths told to the immigration officer. Immigration Act 1971, s 26(1)(c), Schedule 2, para 16(2)

Held:

The applicant originally entered the United Kingdom as a student in the name of Ayoadi Olubenga Ayeni. He became an overstayer. He was convicted of that offence and recommended for deportation. In fact he left voluntarily on 19 July 1983. He returned to Nigeria where he changed his name by Deed Poll. He acquired a new passport. He returned to the United Kingdom on 22 August 1983 and sought entry as a student in his new identity. He was granted admission. When his former identity was discovered he was detained as an illegal entrant. On application for judicial review it was contended that on re-entry to the United Kingdom he had told no untruths, nor had be presented any false documents. He asserted that he had not been asked any questions about his previous immigration history. Held: 1. Applying the test in Khawaja, the applicant had been guilty of deception. 2. Albeit he told no untruths on re-entry, "by his conduct he was lying about himself and doing so deliberately, knowing that if the true facts were known, he would have been refused entry." 3. The applicant had been in breach of s 16(1)(c) of the 1971 Act.

Cases referred to in the Judgment:

Khera v Secretary of State for the Home Department [1982] Imm AR 139. (the appeal of Khera was heard together with that of Khawaja)

Counsel:

N Blake for the applicant N Pleming for the respondent PANEL: McCowan J Judgment By-1: McCOWAN J

Judgment One:

McCOWAN J: This is an application pursuant to leave given for an order of certiorari to quash a decision of an immigration officer dated 9 February 1984 to detain the applicant pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971. In considering this application, I have borne in mind the decision of the House of Lords in the case of Khera v The Secretary of State for the Home Department [1984] AC 74, and I have also had regard to various passages in the speeches in that case to which my attention has been drawn, and in particular to a passage in the speech of Lord Bridge of Harwich beginning at page 118D and ending at 119B. The position is that the applicant was convicted for overstaying, contrary to section 24(1)(b) of the Immigration Act 1971, in the name of Ayoadi Olubenga Ayeni on 13 July 1983, that being the name in the passport by which he had entered the United Kingdom. His date of birth was shown in there as 25 May 1959. He was recommended for deportation, but voluntarily left the country on 19 July 1983. He was back in this country on 22 August 1983, just over a month later. He then appeared to be a completely different person. In the first place he was now carrying a passport in a completely different name, namely, Ayo Ade Olasebikan. In the meantime in Nigeria he had changed his name by Deed Poll to Ayo Ade Olasebikan. Secondly, the passport showed him with a different date of birth, namely 23 March 1960. Thirdly, on entry he represented that he was going to live at a different address, namely 32 Clemence House, Rainsborough Avenue, London, SE8, from the one at which he formerly lived, which was 3 Wareham House, Dorset Road, London SW8. Fourthly he represented that he was going to study at a different college, namely, Emile Woolf College, from the one he formerly studied at, which was South East London Technical College. Having been permitted to enter on those representations, he thereafter, it appears, studied at both those colleges, using his old name at his old college and his new name at his new college. Moreover, though he did go to live at first with a cousin at 32 Clemence House, not many months later he was back living at his old address. Mr Blake, who appears for him, says that he told no lies on the landing card. It contained his true name at that date, his true date of birth and the address he was going to live at, and the college he was going to attend. But there had been a remarkable lot of changes in the four or five weeks which had elapsed. Why had there been those changes? His explanations are to be found in the affidavit which he swore on 19 November 1985. I quote the relevant passages from that affidavit. He says: " . . . my first passport was obtained for me when I was aged 16 by a friend of my father's. This passport contained the date of birth of 25 May 1959. I therefore used this date of birth which was in my passport for all matters when I was in the United Kingdom. When I returned to Nigeria in July 1983, whilst obtaining a new passport, I checked on my date of birth in an old record book I found in Nigeria in my father's writing which gave all my family's details. The date of birth given for me was 23 March 1960. This book is, I presume, still in Nigeria and I have tried unsuccessfully to obtain it. However, I do produce a declaration of Femi Fadugba, who is an uncle of mine, which confirms my date of birth as the 23 March 1960. This declaration is now shown to me and produced as Item 2 of 'AAO1'. "In paragraph 5 Mr Sonnenberg says that whilst I returned to Nigeria I retained my council flat at 3 Wareham House, South Lambeth Estate, Dorset Road, London, SW8. This is not correct. The situation is that myself and my co-tenant had been living at 3 Wareham House during 1983. My co-tenant left in June 1983 and I lived alone in the flat until leaving the country after my court case. Before I left the United Kingdom I made arrangements with my cousin, Bankole Abiwon, for me to reside with him at 32 Clemence House, Rainsborough Avenue, London, SE8, when I came back to the United Kingdom. The reason for this was that since I would not be paying any rent in my absence, I felt my flat at Wareham House might be repossessed by the Council. In fact what occurred was that my co-tenant, unbeknown to me, had arranged for a friend of his to move in in place of him. This person must have moved in after I left for Nigeria and when he found that I was not living there he then moved another friend in. It was not until the beginning of 1984 that one of them moved out and I was then able to move back in. " . . . I was asked no questions by the Immigration Officer at Stanstead Airport about my previous immigration history or about being a student. In fact I was not still registered as an HND (Business Studies) student at the South East London Technical College when I arrived at Stanstead Airport. It was necessary for me to re-enroll for the second year at that college when I returned to the United Kingdom. I did not say anything at all which was false to the Immigration Officer at Stanstead Airport when I returned to the United Kingdom. " . . . when I enrolled at the Emile Woolf College with the name of Olasebikan before leaving for Nigeria I had already formed an intention to change my name, because I was angry with my father at that stage for having got me into trouble by taking my passport away and not sorting out my immigration position, which led to my conviction at court.

" . . . I therefore decided that it was easier to enroll on a full time course before I left the United Kingdom because I would then have documents to show the Immigration Officer when I arrived. It would have been much more difficult to try and arrange a course of study in the United Kingdom from Nigeria. I decided to continue at the South East London Technical College, as well as at the Emile Woolf College, because the South East London Technical College course was complementary to my course at Emile Woolf College while not being exactly the same . . . I continued to use the name I had used previously at the South East London Technical College because all my documentation at that College was in that name, and it was simpler just to continue with it."

His explanation for all those changes which I have read out I find specious in the extreme. I cannot be expected to leave common sense outside the door when I come into Court. It is quite obvious to me that these changes were effected in order to give the impression that he was a different person, because he knew very well that if the immigration authorities had learnt who he really was, they would not have let him in. In my judgment he was representing that he was a different person from the one convicted and recommended for deportation on 13 July 1983. By his conduct he was lying about himself and doing so deliberately, knowing that if the true facts were known he would have been refused entry. I have no doubt, I am wholly satisfied, that he was in breach of section 26(1)(c) of the 1971 Act. I accept the contention of Mr Pleming, for the respondent, that paragraph 9 of the affidavit filed on behalf of the respondent indicates that the appropriate test was applied and the appropriate conclusions reached. Accordingly this application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

BM Birnberg & Co, London SE1, Treasury Solicitor

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