R v. Secretary of State for the Home Department, Ex parte Mohammed Akbar Ali

R v Secretary of State for the Home Department ex parte Mohammed Akbar Ali

Queen's Bench Division

[1989] Imm AR 543

Hearing Date: 26 June 1989

26 June 1989

Index Terms:

Returning resident -- refusal of leave to enter -- current and earlier passports contained forged immigration stamps -- applicant passing under assumed name -- contradictory statements on when applicant first arrived in United Kingdom -- whether refusal of leave justified. HC 169 paras 56, 76.

European Convention on Establishment -- relevance of the provision that national of a contracting party lawfully residing for more than ten years in the territory of any other party shall not be expelled save for serious offences. European Convention on Establishment (1955), Cmnd Paper 4573 of 1971 a 3(3)

Held:

The applicant was a citizen of Bangladesh who first arrived in the United Kingdom in 1976 although he claimed on one occasion to have arrived in 1966. He visited Bangladesh in November 1987 and on his return to the United Kingdom was refused leave to enter. His passports contained forged immigration stamps: he admitted to passing under an assumed name. His case, it was said, had also been considered in the light of the provisions of the 1955 European Convention on Establishment. The refusal of leave to enter was challenged on judicial review. Held: 1. The applicant had not shown that he had been settled in the United Kingdom on 1 January 1973. The immigration officer was correct therefore in having regard to the second limb of paragraph 56 of HC 169: the first limb was not relevant. 2. Reading paragraph 56 with paragraph 76 of HC 169 and in the light of the forged stamps in the passports, the refusal of leave to enter could not be faulted. 3. In the light of the deception practised, the Secretary of State had declined to exercise a discretion in relation to the "ten year rule" embodied in the 1955 Convention on Establishment: the court did not appear to consider that unreasonable, although the learned judge observed "it is not a matter which strictly comes before me because it is a discretion outside the rules."

Counsel:

S Hussain for the applicant; G Sankey for the respondent PANEL: Nolan J

Judgment One:

NOLAN J: In this case Mr Mohammed Akbar Ali moves with leave for an order of certiorari to quash a decision given by an immigration officer on 25 May 1988 refusing Mr Ali leave to enter the United Kingdom, and for consequential relief. The circumstances in which Mr Ali arrived in the United Kingdom on that day are quite simply stated in his affidavit. He had been living in this country for a number of years; the precise number is critical and I shall return to that, but for the moment it is sufficient to say that he paid the first and only return visit to his country of origin, Bangladesh, in November 1987, returning on 25 May 1988 and then being refused entry. In his affidavit Mr Ali claims to have first come to the United Kingdom in March 1966 and since then to have settled in this country. He is a Bangladeshi citizen and therefore a Commonwealth citizen. On that basis the first and simplest way that his case has been put in the affidavit and in argument is that the first limb of paragraph 56 of HC 169 entitled him to enter this country. I shall read the whole of the paragraph because the second part also becomes relevant: "A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he had been settled here at any time during the 2 years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas . . . is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than 2 years." Dealing with the first part of that paragraph, the Act came into force on 1 January 1973 and plainly if, as Mr Ali said, he had already been living in this country for some six or seven years at that time and had required a settled home here that would be an end to the matter. However the history of the case took a different turn very soon after Mr Ali had made his initial claim in terms of this sort to the first immigration officer whom he met. That first immigration officer, Mr Green, on examining Mr Ali's passport, of which he held two, one of them having expired, noted that the expired passport contained forged embarkation and landing and indefinite leave to enter stamps. He also found that the current passport, the 1983 passport, contained a forged visa waiver stamp and a forged immigration and nationality department stamp. Mr Green then referred the applicant to Mr Mackay, another immigration officer at Heathrow. Mr Mackay interviewed the applicant and searched his baggage. In amongst other documents he found a cheque book in the name of Abdul Mukith. At this stage, deposes Mr Mackay, the applicant admitted that his real name was Abdul Mukith, that he had first come to the United Kingdom, not in 1966 but in 1976, that he had done so on a forged United Kingdom passport in the name of Akbar Ali and that he had obtained his Bangladeshi passports in 1981 and 1983 in the name of Akbar Ali. The interview was conducted in English and Mr Mackay did not think an interpreter was required. The applicant, he said, had already demonstrated that he could speak English reasonably well and if the applicant had been in England owning property and conducting a business, even for part of the time, as he claimed, one would have supposed that that would be the case. Once the applicant had changed the date of his initial arrival from 1966 to 1976, it was of course clear that he could no longer, on that basis, rely on the first limb of paragraph 56. Although Mr Hussain, who has taken every possible point on the applicant's behalf, has argued to the contrary, I do not think there is any force in his criticism that the immigration officers should have continued to direct their attention to the first limb; that had simply disappeared from the case. What they appear to have done is look at the second limb which deals with any other passenger returning to the United Kingdom from overseas if he can satisfy the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and has not been away for longer than two years. There is a rider to that paragraph in paragraph 76 and the material part of paragraph 76 says: "Leave to enter may be refused if, for example, the passenger has not observed the time limit or conditions imposed on any grant of leave to enter or remain; if, whether or not to his knowledge, false representations have been employed or material facts not disclosed, orally or in writing, for the purpose of obtaining an entry clearance; or if a previous leave to enter or remain has been obtained by deception." In the last paragraph of his affidavit Mr Mackay says: "The Applicant sought leave to enter the United Kingdom as a returning resident, presenting two passports. The expired 1981 passport bore forged United Kingdom embarkation, landing and Indefinite Leave to Enter stamps. The current 1983 passport bore a forged visa waiver stamp, and a forged Immigration and Nationality Department stamp . . . In the light of these forgeries, and in the light of the admissions which the Applicant made in interview, I was not satisfied that he was a returning resident, and accordingly I was authorised to refuse him leave to enter the United Kingdom." In the light of the provisions of paragraph 76 I do not see how that decision can possibly be assailed. On the basis of what the applicant then said he had disqualified himself from the first limb of paragraph 56 and he was disqualified by the forged passport he had used from the second limb of paragraph 56 read with paragraph 76. There remained one matter to be considered and that was the ratification by the United Kingdom of the European Convention on Establishment on 14 October 1969. Article 3(3) of the Convention provides that citizens who have resided for 10 years in the country are not to be expelled, save for grave misbehaviour or if they are a threat to national security. This, I am told, is the background against which Mr Ali was interviewed for a third time on 3 May 1989 to see whether he might qualify under this heading, the more so in view of the property and business interests which he has acquired and of which there is no question. His answers as recorded at this third interview are no more satisfactory than the answers that he had given previously, in that he constantly contradicted himself as to what his real name was, first saying that it was Akbar Ali and then saying it was Abdul Mukith. He repeated the claim that he had first come to this country in 1966. He was invited to produce any documents, such as national insurance cards or bank accounts, to show, either since that time or at least 1976, that he had been in this country and he was unable to do so. He produced a national insurance card dated 1984, but although both he and his solicitors had been invited to produce any evidence which would support his assertion of earlier residence, such evidence was not forthcoming. In those circumstances I am told that the quetion whether the Secretary of State might have, in his discretion, given Mr Ali the benefit of the 10-year rule, if I may call it that, has been considered and decided against him. It is not a matter which strictly comes before me because it is a discretion outside the rules. But I can only say that in the circumstances, although it may seem hard to Mr Ali, none the less by the lies he has told and the forgeries from which he has obtained the advantage he has disqualified himself of the right to challenge the decision of the immigration officer in law and, as I have said, the decision of the Home Secretary is not open to review. The application must fail.

DISPOSITION:

Application dismissed

SOLICITORS:

ATM Abdullah & Co, London E6; Treasury Solicitor