In re Olugbenga Olusanya

In re OLUGBENGA OLUSANYA

Queen's Bench Division

[1988] Imm AR 117

Hearing Date: 27 October 1987

27 October 1987

Index Terms:

Illegal entrant -- admission secured as visitor -- intention to study concealed -- whether the applicant for habeas corpus was properly regarded as an illegal entrant -- whether detention lawful. Immigration Act 1971 ss 16, 33(1).

Student -- whether a person may enter as a visitor and subsequently under paragraph 107 of HC 169 seek variation of leave as a student -- whether such applications are restricted to those admitted under paragraph 24 as "would-be students". HC 169 paras 21, 24, 107.

Held:

The applicant for habeas corpus had sought admission as a visitor, in which capacity he was given leave to enter for a month. He had always had the intention of studying and obtained entry by what the Court described as "positive misrepresentation and concealment". After he was accepted for a course of study he applied for a variation of leave. After enquiry he was detained as an illegal entrant. Before the Court it appears it was argued that under the provisions of paragraph 107 of HC 169 he was entitled to enter as a visitor and then seek to remain as a student. It was also submitted, for the Secretary of State that in the light of the provisions of schedule 2 of the 1971 Act an application for habeas corpus was misconceived. Held: 1. In the light of the evidence, the applicant had been properly treated as an illegal entrant, having obtained leave to enter by deception. 2. Paragraph 107 of HC 169 had no application to his case. Those entering as visitors entitled under paragraph 107 to apply for variation of leave to remain as students, were only those admitted under paragraph 24 with a short period of leave because as intending students they did not, on entry, satisfy the provisions of paragraphs 21-23. 3. There appeared to be force in the submission on behalf of the respondent that an application for habeas corpus was misconceived but the Court, not having heard full argument made no finding on the point.

Cases referred to in the Judgment:

No cases are referred to in the judgment.

Counsel:

G Warr for the applicant; J Laws for the respondent PANEL: Parker LJ, Kennedy J

Judgment One:

PARKER LJ: This is an application by one Olugbenga Olusanya for a writ of habeas corpus to go in respect of his present detention in the Home Office Detention Centre at Latchmere House, Richmond. The authority given to that body to detain him is signed by the immigration officer who says: "I request you to receive the person named above whose detention I have authorised". Reference is made to paragraph 16 of schedule 2 of the Immigration Act 1971. The matter came originally before a court on 16 October, and it was then adjourned. It apparently came before Mann J yesterday who felt that he would like to dismiss it, but was doubtful whether he could, and he adjourned it to this court. There is no doubt that this court has jurisdiction to hear it. Indeed, it is a properly conceived application. The facts can be very shortly stated. The applicant arrived from Nigeria at Heathrow on 31 January 1987. He applied for leave to enter for two weeks as a visitor for the purpose of buying some spare parts for motor vehicles. He was given leave to enter as a visitor for 28 days. It is recorded on his landing card -- and the words in fact used are "no study, no extension, no work." That can only have the meaning that he did not inend to study or to ask for an extension or to work. On 24 February, before his leave expired, he applied to the Home Office to change his status to that of student so that he might study for a business diploma at the London School of International Business. Four days after that, his leave expired. On 12 March 1987, he was enrolled for a 12-month course for a graduate diploma at the London School of International Business. He should have started his studies at that school on 11 May, but he did not in fact start until 14 September. That was apparently due to some medical consequences of an accident. He did not attend, and it is recorded in the documents before us that the school would allow him to attend on 14 September, subject to production of a medical certificate covering the whole of the spring term. As he was in fact allowed to study, it is a fair inference that a medical certificate was, in due course, produced. On 6 October, after he had been detained in connection with an alleged offence which it is fair to say led to no charge thereafter, he was interviewed by an immigration officer. After caution, he made a statement. The statement was in the form of questions and answers. The answers in each case were initialled by him, and at the end of the questions and answers so recorded, he said: "I have read the above statement, and I have been able to correct, alter or add anything I wish. This statement is true. I have made it of my own free will." The questions include the following: "(Q) What did you tell the immigration officer? (A) That I was coming for a business trip. (Q) How long did you say that you were staying? (A) For two weeks. (Q) Did you intend studying here? (A) Yes, because my father can pay for my expenses here. I intend with his knowledge to study here. (Q) Why did you not tell the immigration officer this? (A) Because I did not have study papers from home. (Q) Had you arranged any studies? (A) No. I had to do that after my arrival. (Q) Did you have money to pay for any studies and to support yourself? (A) Not enough. My father would send me money." There is then the final question which is of great significance: "(Q) What do you think the immigration officer would have said or done if you had told him these things? (A) I thought he would send me back because I have no study papers." Those questions and answers appear to me to establish beyond doubt that when he applied for leave to enter originally, he wholly misrepresented the position. He intended at that time to study. He did not intend to enter as a visitor, nor did he intend to stay no longer than two months, nor was his intention the mere purchase of auto parts. It is submitted on his behalf by Mr Warr that the questions and answers are ambiguous. For my part, I regret to say that I can see no ambiguity whatever in those questions and answers. It is quite plain that the applicant did obtain his original leave to enter as a visitor by positive misrepresentation, and by concealment, and in those circumstances, he was properly regarded as an illegal entrant. That being so, it is not suggested that the consequences which follow would be other than a perfectly proper direction under the authority of paragraph 16 of the second schedule to the 1971 Act to detain him. It is unnecessary therefore to go into the provisions of the Act. There are two matters, however, which I should mention. In the first place, reliance was sought to be placed by Mr Warr on the provisions of paragraph 107 of HC 169 which begins with the following words: "A student or would-be student who applies for variation of his leave for the purpose of study may, subject to paragraph 108, be granted an extension for an appropriate period if he produces evidence . . ." It was submitted that under that paragraph, he was entitled to come in as a visitor and apply then for variation to become a student. The matter does not directly go to the present application, but Mr Laws submits that that construction of paragraph 107 is wrong because the paragraph immediately follows upon paragraph 106 which provides as follows: "A person who satisfied the immigration officer that he had been accepted here for a full-time course as a student, could maintain and accommodate himself during his stay, and would leave when his studies were completed, is likely to have been admitted for an appropriate period, depending on the length of his course, with a condition restricting his freedom to take employment." That is the case of the "student" referred to in paragraph 107. Paragraph 106 continues: "Alternatively a student may have been given leave to enter for a short period under the provisions of the penultimate sentence of paragraph 24 with a prohibition on employment, and advised to apply to the Home Office for a variation of his leave when he had completed his arrangements for study." The penultimate sentence of paragraph 24 provides as follows: "A passenger who satisfies the immigration officer that he has genuine and realistic intentions of studying in the United Kingdom and that he intends to leave the country on completion of his studies but cannot satisfy the other requirements of paragraphs 21-23 may be admitted for a short period, within the limit of his means, with a prohibition on the taking of employment, and should be advised to apply to the Home Office for further consideration of his case." The final sentence reads: "Otherwise a passenger arriving without an entry clearance who is seeking entry as a student is to be refused admission." It is the person, in my judgment, who has got a short leave under paragraph 24 who is the would-be student referred to in the opening words of paragraph 107. That paragraph therefore does not assist the applicant in this case. The second matter which I should mention is that we were invited initially by Mr Laws to say that this application was wholly misconceived because, under paragraph 18(4) of the second schedule to the Act of 1971, it is provided: "A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16 or is being removed in pursuance of sub-paragraph (3) above." It was submitted that the effect of that paragraph is that no application for habeas corpus can possibly be made where the document, which appears at the back of the bundle containing Mr Palmer's affidavit, and which I have already read, is produced to the court. The return to the writ would be made by the Governor who would then produce the authority, and that would be the end of the matter. I can see the greatest force in that submission, but in view of the fact that there have apparently since the Act been successful habeas corpus applications, in one case, at least, in the House of Lords, and since the parties were not prepared to argue the particular point on this occasion, I, for my part, would consider it undesirable to say more than that I consider that the submission made by Mr Laws is one of very considerable force. To go further, without having referred to the House of Lords' authorities, would not be right. I would dismiss this application, whether it be a well-founded application for habeas corpus or whether it be an application for leave to move for judicial review.

Judgment Two:

KENNEDY J: I agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Lewis Silkin, London; Treasury Solicitor