Baljinder Singh v. Hammond

Baljinder Singh v Hammond

QUEEN'S BENCH DIVISION

[1987] 1 All ER 829, [1987] Crim LR 332

Hearing Date: 29 OCTOBER 1986

29 October 1986

Index Terms:

Immigration -- Immigration officer -- Examination of entrant -- Examination away from place of entry -- Whether immigration officer entitled to conduct examination of immigrant away from place of entry -- Whether immigration officer entitled to conduct examination of immigrant at date after entry -- Immigration Act 1971, Sch 2, para 2.

Held:

An immigration officer is entitled under para 2 of Sch 2 to the Immigration Act 1971 to conduct an examination of a person who has arrived in the United Kingdom away from the place of entry and on a date after the person has already entered if he has information in his possession which causes him to inquire whether the person being examined is a British citizen, and if not whether he may enter the United Kingdom without leave, and if not whether he should be given leave and on what conditions.

Notes:

For general offences in connection with the administration of the Immigration Act 1971, see 4 Halsbury's Laws (4th edn) para 1029. For the Immigration Act 1971, Sch 2, para 2, see 41 Halsbury's Statutes (3rd edn) 61.

Cases referred to in the Judgment:

R v Clarke [1985] 2 All ER 777, [1985] AC 1037, [1985] 3 WLR 113, HL.

Introduction:

Case stated Baljinder Singh appealed by way of a case stated by the justices for the North East London commission area acting in and for the petty sessional division of Redbridge in respect of their adjudication as a magistrates' court sitting at Barkingside on 15 May 1985 whereby, on an information laid by the respondent, P c Charles Hammond, they convicted the appellant of making to an immigration officer lawfully acting in the execution of the Immigration Act 1971 a statement which he knew to be false or did not believe to be true, contrary to s 26(1)(c) of the Immigration Act 1971. The facts are set out in the judgment of Glidewell LJ.

Counsel:

Ghulam Yazdani for the appellant. Donald Gordon for the respondent.

PANEL: GLIDEWELL LJ AND OTTON J

Judgment One:

GLIDEWELL LJ. This is an appeal by way of case stated by the justices for the petty sessional division of Redbridge in the North East London commission area, sitting as a Magistrates' Court at Barkingside. On 26 April 1985 the appellant, Baljinder Singh, appeared to answer an information laid by the respondent, P c Hammond, alleging three offences. One was that on 10 October 1984, at Ilford in Essex, he had made to an immigration officer, lawfully acting in the execution of the Immigration Act 1971, a statement or representation which he knew to be false, or did not believe to be true, contrary to s 26(1)(c) of the Immigration Act 1971. There were two other offences alleged, also under the same Act. On 15 May 1985 the justices convicted the appellant of the offence under s 26(1)(c) but acquitted him of the other two offences. The case stated does not tell us what, if any, penalty they imposed. The facts are carefully set out and I must summarise them because the case does turn very much on its own facts. The justices found that the appellant, who is an Indian citizen, is resident in this country. On 9 October 1984 the appellant returned to this country from the United States. He presented himself at immigration control at Heathrow where he presented an Indian passport issued in London on 20 October 1983 in the name of Agit Singh born at Gamtala on 20 December 1951. The appellant was admitted for his continued residence. On 10 October 1984 the appellant was visited at his home by an immigration officer and the respondent. The respondent and the immigration officer were invited into the appellant's home. On that occasion, during the course of an interview conducted by the respondent and the immigration officer, the appellant stated that his name was Agit Singh, son of Swarn Singh, born on 2 December 1951, and admitted that he had entered this country illegally in July 1972. The appellant told the immigration officer that he had never used any name but Agit Singh, that he had not travelled to this country before July 1972, and that he had never been sent away from this country. On 28 October 1984 the appellant was again visited at his home address by two immigration officers. During this second visit the appellant told the officers that his name was Baljinder Singh, the son of Mohan Singh, born on 2 December 1949, and he said that he had been refused entry at London Airport in 1971. The appellant said he had legally changed his name to Agit Singh. I shall pause for one moment before continuing to relate the facts. If what the appellant said on the second occasion, added to part of what he had said on the first occasion, was correct, what the justices were finding was that the appellant was born and named Baljinder Singh, son of Mohan Singh. He was refused entry at London airport in 1971, had changed his name legally to Agit Singh (they do not say when the legal change came about), came back to this country and entered illegally in July 1972. The case continues as follows. The appellant had been given leave to remain in the United Kingdom as a result of the amnesty of 1974 to 1975. The questions put to the appellant on 10 October 1984 by the immigration officer were directed to discovering the appellant's true identity and ascertaining whether, if he was not a British citizen, he might re-enter the United Kingdom without leave. The answer given by the appellant that he had never been refused entry to this country was untrue, as was his statement made on 10 October 1984 that he had never used any name other than Agit Singh and that he had not travelled to this country before July 1972. The 'amnesty' referred to in part of those findings is the name given to a policy adopted by the Home Secretary originally in 1974, and then extended on 29 November 1977, under which the Home Secretary announced that he would not use his powers of removal to send away from the United Kingdom Commonwealth citizens who had entered the United Kingdom illegally between 9 March 1968 and 1 January 1973. These people had thus been in this country for a number of years when the Home Secretary made his original announcement in 1974 and his later announcement in 1977. The amnesty had to be claimed that is to say persons who wanted the benefit of it had to go to the police or the immigration officials and admit that they had entered the country illegally, show when they had done so, and then claim the benefit of the amnesty. The effect was that if they were granted the benefit of the amnesty, as the justices found the appellant was, thereafter they would not be sent out of this country unless some circumstance arose under which they might be deported. That may happen, for example, where a person is convicted of a serious offence. A person entitled to the benefit of the amnesty, if he remained in the United Kingdom for sufficiently long, would then become settled in the United Kingdom and be entitled not merely to continue to reside here without interruption, but also, if he left the United Kingdom for a short visit overseas, to be given leave to re-enter upon his presenting himself at immigration control. That is the other matter referred to in the case as being the purpose to which the questions asked on 10 October were directed that is to say that the justices were finding that the immigration officer's questions on that occasion were directed to finding first of all whether the appellant was Agit Singh or Baljinder Singh and whether he was a British citizen, and having ascertained that he was not and did not claim to be, then whether he was settled here so that he was entitled to re-enter, as indeed he had done the day before on 9 October. The justices concluded that--

'an Immigration Officer is entitled to conduct an examination under paragraph 2 outside the port area to determine whether or not a person is or is not a British citizen, and that if the questions put during such an interview are relevant to that purpose the person being examined is under an obligation to answer truthfully. In our view the questions put to the Appellant during the interview of the 10th of October were relevant to that purpose and therefore the Appellant was obliged to answer them truthfully. As the Appellant made three untrue statements during the course of the interview we determined to convict the Appellant. The question for the opinion of the High Court is whether we were wrong in law to convict the [appellant].'

Not all the submissions which were made in the magistrates' court were pursued before us. The points made by counsel for the appellant, which he has made with great clarity, come essentially to one, but it is an important point because it affects a great many people who are in the position where, at some time in the past, they may or may not have entered illegally, where they have been permitted to enter the United Kingdom, and where circumstances arise where the Home Secretary or his officials come to suspect that they may have obtained leave to enter by deception. The point can be expressed in this way. On 10 October the immigration officer was not entitled to examine the appellant. Thus, since the offence is only committed, to refer back to the words of s 26(1)(c)1--

'if on any such examination or otherwise he makes or causes to be made to an immigration officer . . . a . . . statement or representation which he knows to be false or does not believe to be true,'

counsel submits that the interview on 10 October was not such an examination or otherwise. Thus, the untruthful answers to the questions did not constitute an offence within s 26(1)(c). In order to see whether that submission is correct, it is necessary to look at further provisions of the Act. Section 26 begins as follows:

'(1) A person shall be guilty of an offence . . . in any of the following cases--(a) if, without reasonable excuse, he refuses or fails to submit to examination under Schedule 2 to this Act . . . (c) if on any such examination or otherwise . . .'

So the phrase 'such examination' is an examination under Sch 2 to the Act. Turning to Sch 2, it is para 2 that deals with examination by immigration officers. Paragraph 2(1) provides:

'An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft . . . for the purpose of determining--(a) whether any of them is or is not a British citizen and (b) whether, if he is not, he may or may not enter the United Kingdom without leave and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave.'

Paragraph 2(3) provides: 'A person, on being examined under this paragraph by an immigration officer . . . may be required in writing by him to submit to further examination . . .' This was not a further examination under para 2(3), because a further examination takes place when, at the end of the initial examination, the immigration officer makes it clear that a further examination is required. That was not the situation here. Counsel for the appellant submits that the power under para 2(1) to examine is limited to an examination at the time and place at which the person being examined arrives in the United Kingdom that is to say at the port or airport of entry. That is an examination which is conducted before he is either given or refused leave to enter. Counsel says that that examination, subject to the power to require a further examination under para 2(3), is the only examination which can be conducted under para 2(1). When a person is examined under para 2(1), or indeed under para 2(3), then under para 4 of Sch 2 he is under a duty 'to furnish to the person carrying out the examination all such information in his possession as that person may require for the purpose of his functions under that paragraph.' In other words, a person who is the subject of an examination properly carried out under para 2(1) is not entitled to refuse to answer the questions. He is under a duty to answer them. The duty is enforced by s 26(1)(b) under which it is an offence not to furnish the information that he is required to furnish. Counsel for the appellant sought support for his submission in passages from the speech of Lord Bridge in R v Clarke [1985] 2 All ER 777, [1985] AC 1037. That was a case in which a police officer who was investigating another matter, nothing to do with the 1971 Act, asked questions of the appellant whether the appellant was lawfully in the United Kingdom. It was held by the Court of Appeal and upheld by the House of Lords that the police officer was not, when he asked those questions and was given replies which may or may not have been untruthful, a person lawfully acting in the execution of the 1971 Act within s 26(1)(c). Although that authority deals generally with a problem related to that with which we are concerned, it does not touch directly on the point at issue here. I, for my part, do not find in it anything of assistance to the decision which we have to make. To come back to the issue, counsel for the respondent draws our attention to s 4 of the Act, which relates to Sch 2. Section 4(2), so far as material, provides:

'The provisions of Schedule 2 to this Act shall have effect with respect to . . . (b) the examination of persons arriving in or leaving the United Kingdom by ship or aircraft, and the special powers exercisable in the case of those who arrive as, or with a view to becoming, members of the crews of ships and aircraft and (c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully . . . and for other purposes supplementary to the foregoing provisions of this Act.'

Counsel for the respondent accepts that s 4(2)(b) relates specifically to an examination of persons arriving in or leaving the United Kingdom. Such an examination, he accepts, must take place at the place and time of arrival, or it may be adjourned under the provisions of para 2(3) of Sch 2. But he submits that an examination can be conducted under s 4(2)(c) in respect of somebody who has been admitted into the United Kingdom if it is later suspected that he may have been admitted as a result of deception. Section 4(2)(c) reads as follows:

'The provisions of Schedule 2 to this Act shall have effect with respect to . . . (c) the exercise by immigration officers of their powers in relation to . . . the removal from the United Kingdom of persons . . . entering or remaining unlawfully . . .'

Counsel for the respondent submits that the immigration officer in this case, once it came to his notice that the appellant had entered in one name, had entered illegally and had previously entered under another name before his original entry, had reason to believe that the appellant might be remaining unlawfully. He was thus entitled to conduct an examination under para 2 which was a provision falling within s 4(2)(c). He says it is true that s 4(2)(c) does not talk about examinations as s 4(2)(b) does, but nevertheless an examination is part of the powers of immigration officers forming an integral part of their functions and duties in relation to investigating persons who have entered or remained unlawfully. Alternatively, counsel argues, even if the examination which was being conducted was not an examination within para 2, then going back to s 26(1)(c), untruthful answers were given otherwise than on an examination on an occasion which was not an examination under para 2, but still a valid exercise of the immigration officer's powers. Counsel, I take it, is suggesting that if the immigration officer is not conducting an examination in the strict sense, he nevertheless is entitled to ask questions and, if the person who is being asked them does answer them and does not decline to do so, then, if the answers to those questions are false, they constitute the offence. This is a matter on which, as I see it, there is no direct authority at all. As I have said, it is of importance because if counsel for the appellant's argument is correct, the powers of immigration officers are much more circumscribed than I imagine the Home Office has thought they were in relation to those who it is suspected are here unlawfully. That, in itself, is not a consideration that assists in relation to the proper interpretation of the Act. For my part, I take the view that counsel for the respondent's first argument is correct. An examination, I would hold, can properly be conducted by an immigration officer away from the place of entry and on a later date after the person the subject of the examination has already entered, if the immigration officer has some information in his possession which causes him to inquire whether the person being examined is a British citizen, and, if not, whether he may enter the United Kingdom without leave, and, if not (which is the relevant question in this case), whether he should have been given leave and on what conditions. The question whether he should have been given leave was dependent, of course, on deciding whether he was here lawfully or not. On the facts found by the justices, albeit in my conclusion the examination was lawful, it follows that if the appellant had answered the questions truthfully in the first place, had disclosed that he had tried to enter once and was turned away, and then entered illegally the second time he made his attempt, and that he used two names having changed his name from Baljinder to Agit, he would not have committed any offence under s 26(1)(c). He may, of course, have been frightened that if he told the truth some attempt would be made to say that he was not here legally. But if, as the justices found, he was entitled to the benefit of the amnesty, he need have had no such fear. Whether he feared it or not, that did not justify the false statements which they found he made. On the question of law, I conclude that the justices' conclusion was correct, save for this. They concluded that the immigration officer was entitled to conduct the examination 'to determine whether or not a person is or is not a British citizen'. I would add to that the following: 'and, if not, whether he is entitled to be given leave to re-enter,' which was really the question at issue in this case. Subject to that, I agree with the justices' approach and their conclusion, and I would dismiss the appeal.

Judgment Two:

OTTON J. I agree.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

B C Mascarenhas (for the appellant); D M O'Shea (for the respondent).