R v. Secretary of State for the Home Department, Ex parte 'V'

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte 'V'

Queen's Bench Division

[1988] Imm AR 561

Hearing Date: 23 June 1988

23 June 1988

Index Terms:

Indefinite leave -- interviews by immigration officers -- separate interviews on different days -- notice to applicant that a further interview was to be held, given only at end of first interview and not after each succeeding interview -- whether applicant was to be deemed to have been given indefinite leave to enter. Immigration Act 1971 s 4(1), sch 2 paras 2, 6, 16(1): HC 169 para 73.

Held:

The applicant for judicial review challenged a refusal of leave to enter, a decision made on 21 March 1988. The applicant had arrived in the United Kingdom at 9.00 am on 30 January 1988. The immigration officer who interviewed him on his arrival considered that a further interview was necessary and served form IS81 on the applicant as required by schedule 2 of the 1972 Act. A further interview was then held that same day and the immigration officer decided that because political asylum was being claimed, further consultation was necessary. The case was referred to the Home Office: the applicant was detained and no new notice was served on him. Further interviews were held on 6 and 7 February and finally another interview was held on 21 March 1988, at the conclusion of which leave to enter was refused. Counsel argued that under the provisions of schedule 2 of the 1971 Act, a fresh notice of intention to conduct additional interviews was required, in effect, at the end of each interview: otherwise, at the end of the first interview where no such notice was given, the 'twelve hours' specified in paragraph 6(1) of schedule 2 began to run: in consequence, on the chronology of the case, the applicant was deemed to have received indefinite leave to enter, twelve hours after the end of the second interview on 30 January 1988. Held: 1. Paragraph 2(3) of Schedule 2 of the 1971 Act is not to be construed "as requiring a fresh notice to be served to validate each session of further examination." The language is apt to describe a continuing process of examination. 2. The paragraph has no application to circumstances where a decision to grant or refuse leave to enter has not yet been made. 3. Following ex parte Insah Begum "an examination is not concluded until all information is to hand."

Cases referred to in the Judgment:

R v Chief Immigration Officer, Manchester Airport ex parte Insah Begum [1973] 1 WLR 141: [1973] 1 All ER 594.

Counsel:

A Riza for the applicant; N Pleming for the respondent PANEL: Bingham LJ, Hutchison J

Judgment One:

BINGHAM LJ: In this matter I shall ask, but not direct, that this case be entitled R v The Secretary of State for the Home Department, ex parte V. This is an application to quash a decision of an immigration officer made on the 21 March 1988. On behalf of this applicant Mr Riza argues one point only. This point is that on a propr construction of the Immigration Act 1971 and in particular paragraphs 2 and 6 of Schedule 2 of the Act, the applicant is, on the facts of the case, to be deemed to have been given indefinite leave to enter the United Kingdom. If that is so it would necessarily follow that the immigration officer's decision refusing the applicant leave to enter was bad. The relevant facts can be shortly stated since they are not in issue. The applicant, a citizen of Sri Lanka, arrived in the United Kingdom on 30 January 1988 at 9.00 am on a flight from Bangkok. He was first interviewed by an immigration officer (Mrs Knight) who found that his passport was mutilated and that he could not speak English. He was then served with Form IS81 requiring him to submit to further examination by an immigration officer. He was detained while the help of a Tamil interpreter was sought. At about 11.15 am on the same day Mrs Knight interviewed him through a Tamil interpreter. The applicant conveyed that he feared for his safety if he returned to Sri Lanka and made what was recognised as a plea for asylum as a refugee. The matter was referred to the Home Office for further consideration. Meanwhile the applicant was detained. Having been requested by the Home Office to give the applicant a full political asylum interview, another immigration officer (Mr Goode) interviewed the applicant in prison on the 6 and 7 February 1988. The first interview was a brief one, the second was lengthy. The applicant's claim for asylum was fully explored. After the interview on 7 February was completed, Mr Goode completed a political asylum questionnaire form and passed it to the Home Office for consideration of the applicant's claim. In due course the Home Office decided that, subject to any representations the applicant might make on further interview, he should be refused asylum. Accordingly Mr Bradley (another immigration officer) arranged to interview the applicant in prison again on 21 March 1988. The applicant was then given the opportunity to make additional representations in support of his plea for asylum, but he had nothing to add. Mr Bradley accordingly served him with notice of refusal of leave to enter. It is the decision notified in that document which the applicant seeks to quash. I need not recite section 4(1) of the 1971 Act which empowers immigration officers to give or refuse leave to enter the United Kingdom and provides that those powers shall be exercised by notice in writing. I should, however, set out the relevant parts of paragraph 2 of Schedule 2 to the Act, on which the applicant's argument is in part founded: "2(1) An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purposes 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. "(2) any such peson, if he is seeking to enter the United Kingdom, may be examined also by a medical inspector or by any qualified person carrying out a test or examination required by a medical inspector. "(3) A person, on being examined under this paragraph by an immigration officer or medical inspector, may be required in writing by him to submit to further examination". I omit the remainder of that paragraph. Paragraph 6(1), on which the applicant also relies, provides (so far as relevant): "6-(1) . . . where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than 12 hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not [a British citizen]) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave." I should also refer to paragraph 16(1) of Schedule 2, which states: "A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter." Finally, I must make reference to rule 73 of the Statement of Changes in Immigration Rules (House of Commons Paper 169) of February 1983: "Part VII: Asylum 73. Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocal relating to the Status of Refugees." Mr Ritza's submission for the applicant is this. At the conclusion of any examination an immigration officer must make a decision on the case or serve a notice on the immigrant requiring him to submit to further examination. If he serves no such notice the immigrant cannot be detained. If the officer does not serve a notice requiring the immigrant to submit to further examination within twelve hours of the first examination and does not serve notice granting or refusing leave within that twelve hours, the immigrant is deemed to have indefinite leave to remain. Time begins to run from the conclusion of the immigrant's examination or further examination, each session of further examination requiring its own separate notice. Here, the notice served after 9.00 on the 30 January covered, but covered only, the further examination which took place at 11.15 am on that day. When twelve hours expired from the conclusion of that session of further examination without service of a notice granting or refusing leave, the applicant was to be deemed to have been given indefinite leave to enter. His detention thereafter was unlawful as was the subsequent notice of refusal of leave to enter. This is a neat and simple argument, but I have to say that it is also, in my opinion, wrong. I reach that conclusion for three main reasons. First, even if it be assumed (and it is unnecessary to decide) that service of a notice requiring an immigrant to submit to further examination is a mandatory pre-conditon of carrying out a further examination, I see no reason to construe paragraph 2(3) as requiring a fresh notice to be served to validate each session of further examination. The factual situation envisaged by the paragraph is fairly clear. An immigrant has arrived in the country and been examined by an immigration officer under paragraph 2(1). The officer is, for some reason, unable to make a decision there and then. Further consideration (required to be by the Home Office in an asylum case) or enquiry is needed. So the officer serves notice requiring the immigrant to submit to further examination. He cannot then know (and the form does not specify) when or where the further examination will take place nor what form it will take nor how protracted it will be. Paragraph 2(3) does not refer to "a" examination but to "further examination" generally. The language is apt to describe a continuing process of examination. The reference to "(including any further examination)" in paragraph 6(1) in my view means "(including further examination, if any)" not "(including each further examination)". The applicant's argument would require Mr Goode to have served a notice under paragraph 2(3) on the applicant on 7 February, even if Mr Goode believed, having conducted the full asylum interview, that no further examination was necessary. I can see no sense in this and I do not think the language of the schedule requires that result. Secondly, paragraph 6(1) applies where an immigrant who has been examined under paragraph 2 "is to be given a limited leave to enter or is to be refused leave." The object of the paragraph plainly is to ensure that an immigrant shall be given notice of the decision promptly as soon as a conclusion has been reached. But the paragraph does not apply to a case where it cannot be said whether an immigrant is to be given a limited leave to enter or is to be refused leave (or is to be given indefinite leave to enter) because his case is still under consideration and no conclusion has been reached. The immigration officer can scarcely be obliged to give notice of a decision which has not been made. Thirdly, I regard R v Chief Immigration Officer Manchester Airport ex parte Insah Begum [1973] 1 WLR 141, as authority for the proposition that an examination is not concluded until al information is to hand. Mr Riza points out, quite correctly, that this was a decision on a different Act containing different provisions. It must therefore be applied with caution. But paragraph 2(3) of the first schedule to the Commonwealth Immigrants Act 1962, there under consideration, required that notice of decision "shall not be given to any person later than twelve hours after the conclusion of his examination (including any further examination) . . ." So the language used was closely comparable to that of paragraph 6(1). In my opinion the applicant's further examination was not concluded until on 21 March, after the Home Office had considered his case and reached a provisional conclusion on his asylum application, he confirmed that he had nothing to add to what he had already said. He was then, at once, given notice of refusal of leave to enter. His dentention up to then had been warranted because further examination and a decision to give or refuse him leave to enter had been pending. In my judgment this application must be refused.

Judgment Two:

HUTCHISON J: I agree that this application must be dismissed, and I wish to add only a few words. As I understood Mr Riza's argument on paragraph 2 of schedule 2, he attached some significance to the fact that sub-paragraph (3) reads: "A person, on being examined under this paragraph by an immigration officer . . . " and not "A person, on being examined under sub-paragraphs (1) or (2) of this paragraph by an immigration officer . . ." Mr Riza submits that an examination pursuant to sub-paragraph (3) is nonetheless an examination "under his paragraph", and accordingly the requirement for a notice in writing applies not merely to a further examination following a sub-paragraph (1) or (2) examination, but also to a further examination following a sub-paragraph (3) examination. If the intention had been to require written notice as a prelude only to any further examination or examinations following the sub-paragraph (1) and (2) examinations, sub-paragraph (3) would have been drafted in the alternative way that I indicated a moment ago. I can see the force of this argument, but I remain unconvinced that it justifies the conclusion that as a matter of construction written notice is required otherwise than as a prelude to further examination following the sub-paragraph (1) and/or (2) examinations. Like my Lord, I attach significance to the absence of the word "a" before the words "further examination", and (while recognising that the matter is not entirely free from difficulty) I would construe paragraph 2 as he does. Moreover, even if the argument just discussed were correct, it would go only to the first of the three reasons which my Lord has given for rejecting the applicant's contentions, and I am in entire agreement with the second and third of those reasons. I see no escape from the construction that paragraph 6 applies and applies only where a conclusion has been reached: and I do not understand how it is suggested that a mere breach of the notice provisions in paragraph 2 -- if there were one -- would have the effect of bringing the deeming provision of paragraph 6 into operation.

DISPOSITION:

Application dismised

SOLICITORS:

Chatwani & Co, Southall: Treasury Solicitor