R v. Secretary of State for the Home Department, Ex parte Saichon Chomsuk

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SAICHON CHOMSUK

Queen's Bench Division

[1991] Imm AR 29

Hearing Date: 29 June 1990

29 June 1990

Index Terms:

Illegal entrant -- application for visa, and limited leave granted, as student -- applicant discovered working in sponsor's restaurant -- whether student always intended to work as well as study -- whether there had been material misrepresentation to the visa officer -- whether in the events which had happened the admissions made by the applicant when first interviewed by immigration officers were unreliable. Immigration Act 1971 s 33(1): HC 169 paras 21, 22, 27.

Interpreter -- allegation of bias -- whether where such an allegation had been made the suspicion of bias had to be dispelled by persuasive evidence that the allegations were untrue -- whether evidence had to be produced that the person concerned had been cleared of such allegations.

Held:

The applicant for judicial review was a citizen of Thailand whom the Secretary of State had concluded was an illegal entrant, on the basis of deception practised to secure admission to the United Kingdom, as a student. His sponsor was his half-sister who, with her husband, had owned a restaurant. The applicant was discovered working in the restaurant: when interviewed by the immigration officers he made admissions on which the Secretary of State relied to show it had always been intended that in return for support for his studies, the applicant would work in his brother-in-law's business. The reliability of those admissions was challenged before the court. It was also contended that the interpreter used in the interview was not, in the circumstances, a fit and proper person. Moreover, evidence by way of an article in a newspaper was produced to show that there had, earlier, been allegations of improper conduct made against the interpreter and, in consequence, following R v Batth, there was an appearance of bias in her conduct, which showed impropriety in the proceedings. The court heard oral evidence from the immigration officers concerned, and the interpreter. Held: 1. On the facts and following findings of credibility on the witnesses, the court concluded that the material interview had been properly conducted and that reliance could be placed on the admissions made by the applicant. 2. It had always been intended that the applicant should work in the restaurant in return for help with his studies and that, the applicant had known: there had accordingly been material misrepresentation to the visa officer and the immigration officer. The Secretary of State's decision could not be successfully challenged. 3. The mere placing before the court of a newspaper article containing allegations against the interpreter, did not advance the case at all. The court did not accept, as a general principle, that "once allegations are made against a person such as an interpreter, the suspicion of bias must be dispelled by persuasive evidence that the allegations are untrue. If that were so it would be open to individuals or newspapers to make allegations against a public officer. The mere making of those allegations in the absence of a detailed reply to them before the relevant tribunal, would disentitle the person from performing his or her public duties." 4. The interpreter had in fact been cleared of the earlier allegations and there was evidence to show that before the court. Had there not been, the court would still not have concluded that there was such reasonable suspicion of bias as would have justified the quashing of the decision.

Cases referred to in the Judgment:

Metropolitan Properties (FGC) Co v Lannon [1969] 1 QB 577: [1968] 3 All ER 304. Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. R v Batth (1990) The Times 11 April.

Counsel:

R Ryde for the applicant; R Jay for the respondent PANEL: Pill J

Judgment One:

PILL J: This is an application to quash the decision of 2 March 1989 that the applicant, Mr Saichon Chomsuk, is an illegal entrant and that directions are to be given for his removal from the United Kingdom. The applicant was then 21 years old. His date of birth is 10 February 1968. He is a Thai national. He had been brought up by his half-sister, Onuma, in Thailand, his mother having died some years ago. In 1985 his half-sister married a British citizen, Mr Robert Kidd, and came to live with him in the United Kingdom. Mr Kidd bought, and she operated, the Siam Bangkok restaurant in Norwich. At the end of 1988 the business was sold to a Mr Starke who was also married to a woman of Thai origin. He became the proprietor of the restaurant which continued to provide Thai food. Mrs Kidd wanted her brother to come to England to learn English. Between 1985 and 1988 Mr Kidd had sent money to Thailand, at her request, to held meet the cost of the applicant's maintenance by another sister. Mrs Kidd wanted the applicant to study in England so that on his return to Thailand he could get a good job. That intention had been formed before she agreed to marry Mr Kidd and Mr Kidd's agreement to sent money to Thailand also pre-dated the marriage. In 1987 Mrs Kidd wrote to her sister in Thailand and suggested that the applicant should come to the United Kingdom. Mr Chomsuk applied for a study visa in Thailand and was interviewed by a visa control officer in October 1987. A visa was granted. On 23 April 1988, on arrival in the United Kingdom and following interview with an immigration officer, the applicant was granted 12 months' leave to enter as a student. He commenced a course in the English language at the International Colleagues School of English in Norwich on 27 June 1988. On 1 March 1989 an immigration officer visited the Siam Bangkok restaurant and found the applicant in the kitchen. The applicant was arrested and detained in custody overnight. On the following day he was interviewed by an immigration officer, Mr CR Davies. Also present at the interview was another immigration officer, Mr JW McGinty. Mrs AC Ross acted as interpreter. Following the interview a notice was served on the applicant alleging that he was an illegal entrant. There was a further interview on the following day. The applicant states, at paragraph 2 of his affidavit, "I am not an illegal entrant. I sought leave to enter this country and entered intending only to study. I have never worked here." The respondent contends that that statement is inaccurate: first, as to the intention with which the applicant came to the United Kingdom and, second, as to whether he had worked here. The burden is on the respondent to prove that the applicant is an illegal entrant. The court will require the high degree of probability which is appropriate to what is at stake. As Lord Bridge stated in R v Home Secretary ex parte Khawaja [1984] AC 74 at page 124E: ". . . the civil standard of proof by preponderance of probability will suffice, always provided that in view of the gravity of the charge of the fraud which is to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of high degree." Lord Scarman also dealt with the question of the burden of proof at pages 113H to 114C. It is for the court to consider the evidence and to decide whether that burden upon the respondent is satisfied. I have affidavits and supporting documents. Oral evidence was also given pursuant to leave. The applicant sought and obtained 12 months' leave to enter the United Kingdom as a student. He needed to -- and was thought to -- comply with the requirements of paragraphs 21 and 22 of HC169, the relevant immigration rules. As far as material these requirements were, as is common ground, (1) acceptance for a course of study which '"will occupy the whole or a substantial part of his time"; (2) ". . . that he can, without working and without recourse to public funds, meet the cost of the course and of his own maintenance and accommodation and that of any dependants during the course"; and (3) at least ". . . 15 hours a week in organized daytime study" is required. Paragraph 27 of the rules provides as far as relevant: "If a passenger is coming to the United Kingdom to seek employment or to take employment for which he has no work permit . . . leave to enter is to be refused." If a person obtains leave by means of a material deception he is an illegal entrant as defined in section 33(1) of the Immigration Act 1971 -- (sections 3(1)(a) and 26(1)(c) of the Act. In Khawaja Lord Scarman stated at page 107D: "It is an offence for a person who is being examined by an immigration officer to make a statement or representation which he knows to be false or does not believe to be true: section 26(1)(c) of the Act. Silence can, of course, constitute a representation of fact; it depends upon conduct and circumstances. If the offence is committed it is a breach of the immigration laws. The definition therefore covers a person who by committing the offence obtains leave to enter the United Kingdom." At page 119A Lord Bridge accepted the statement of Lord Wilberforce in an earlier case: "It is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to a material fact." It is common ground that a deception is material if it procured the entrant the leave in question. A person who obtains leave to enter by misrepresenting the facts is an illegal entrant. If he had told the truth he would not have been granted leave to enter in the capacity in which leave is now granted. It is irrelevant that had he told the truth he might have obtained leave to enter in some other capacity. The respondent seeks to prove that entry was obtained by misrepresentation. Reliance is placed upon admissions said to have been made by the applicant at interview on 2 March 1989, the visa officer's note of interview and the surrounding circumstances. It is submitted that the applicant was working in the United Kingdom (within the meaning of that term in the rules), that he was working to meet relevant costs and expenses and that he made representations to a contrary effect. In his grounds the applicant submits: (1) The applicant was given leave to enter the United Kingdom in order to study and the leave has not expired. (2) The applicant did not intend, at the time, of seeking leave for entering the United Kingdom to enter employment. (3) The applicant did not use deception in order to gain entry into the United Kingdom. (4) Alleged admissions made to immigration officers on 2 March 1989 were untrue and were obtained by improper pressure and/or incorrect interpretation. In any event the use of one Mrs Ross as an interpreter and her behaviour gave rise to an appearance of bias. (5) The decision fails to take into account a further interview on 3 March 1989. (6) The applicant has never been employed in the United Kingdom. The relevance of the interview on 3 March 1989 is that the admissions made on the previous day were retracted by the applicant. In support of his submission that no deception was practised, Mr Ryde, for the applicant, submits that the admissions made on 2 March 1989 were unreliable. He submits that at no relevant time were material representations made. At no time was the applicant asked in terms whether he intended to work in the United Kingdom. The correct findings of fact, Mr Ryde submits, are that the applicant did not work at the restaurant and was paid only @10 a week pocket money by his sister. At no material time did he intend to work at the restaurant. If anyone intended that he should work at the restaurant when arrangements for his entry were made, it was not the applicant but Mr and Mrs Kidd who did not communicate that intention to the applicant. It is further submitted that, even if the applicant worked at the restaurant for a wage, and work means more than casual help it was not proved that the applicant, without that work, could not have met the appropriate costs because his sister and brother-in-law intended to and did meet those costs. Mr Ryde also submitted that, on the evidence, it is not established that an immigration officer in possession of the material facts alleged by the respondent to be true would have refused admission. He also submits that, even if all facts are found in the respondent's favour and the burden of proof upon the respondent would otherwise be satisfied, there was an appearance of bias in the decision because the interpreter at the interview on 2 March 1989, Mrs Ross, was not a proper person to act as interpreter and the decision should be quashed on that ground. It is common ground that the applicant attended a course of study involving the appropriate number of hours at the Colleagues School of English. The course ended on 17 March 1989 shortly after the interview. The director's report upon the applicant reads: "when Saichon Chomsuk started his course he spoke almost no English and in the three terms he has been at this school he has made excellent and really quite remarkable progress. His listening skills are particularly good and within certain limits he is quite an effective communicator. His grammatical knowledge has progressed sufficiently to support his skill as a communicator. He has approached his studies with commitment and enthusiasm and has been a highly popular student." While other arguments arise, an important aspect of the applicant's case is that the admissions made at interview on 2 March 1989 are not reliable admissions. They were, as Mr Ryde puts it, "wrung out of him". The respondent accepts that if the admissions had been held not to be reliable he cannot satisfy the burden of proof upon him. There are also factual issues as to the circumstances in which the applicant was found at the restaurant on 1 March 1989. In view of the issues of fact I think it appropriate to summarize the oral evidence. The witnesses confirmed the accuracy of their affidavits with one exception to which I need not refer. Mr Davies is an experienced immigration officer. He said that when he entered the restaurant on 1 March 1989 he found the applicant in overalls working at the kitchen sink, peeling and preparing vegetables. Also present was a Mr Dankering who admitted he worked at the restaurant. Mr Davies said that he asked the applicant whether he had permission to work there and the applicant said that he did not. Mr Davies then described the circumstances of the interview on the following day at Norwich police station. He asked the applicant all the questions. Several were answered in English. The applicant seemed at ease. There was no shouting or bullying. The notes at page 58 of the bundle were written while the interview was taking place. Mrs Ross was acting as interpreter. In order to have a check upon the accuracy of the interpretation Mr Davies had three questions put to the applicant over the telephone by another interpreter, Mrs Sullivan. Those questions are marked as circled 1, 2 and 3 at pages 62 and 63 of the bundle. It emerged that substantially the same answers were given by the applicant to Mrs Sullivan as had been given at interview with Mrs Ross acting as interpreter. Mr Davies said that he followed that procedure because he was concerned to consider whether the original answers were correct. Mr McGinty was present for the greater part of the interview. The applicant answered questions without any pressure. He said that he knew he was going to work in return for his sister and brother-in-law paying for his studies. Mr McGinty is also an experienced immigration officer. He was offered the opportunity to ask questions but did not do so. There was what he described as a general chat between Mr Davies and the applicant and this was followed by a more formal interview. The interview was conducted in a very professional manner. As to Mrs Ross's conduct, Mr McGinty said it was what he would expect of an interpreter. She did not appear to be speaking too loudly or too quickly. He was there for 80% of the time of the interview. The whole interview lasted just over an hour. The applicant did not look particularly tired or distressed. Mr McGinty's recollection of the contents of the interview was very vague now, as one would expect. Neither he nor Mr Davies spoke any Thai. Mr McGinty could not recall any answers given by the applicant in English. He thought the applicant's English was poor, although this was a judgment by high standards which he applied. No complaint is made by the applicant about Mr McGinty's conduct at the interview. I found him a reliable witness, as I did Mr Davies. The point is made on behalf of the respondent that, had there been any bad practice at the interview, Mr McGinty must have been a party to it. The point is also made that in his affidavit Mr McGinty said that he asked the applicant whether he had been working at the Siam Bangkok and the applicant replied that he had. Mr McGinty said that he asked the applicant how much he had been paid for working there and the applicant replied that he had been paid @90 per week. That evidence in the affidavit was not challenged on behalf of the applicant and is consistent with the note of interview which was prepared by Mr Davies and is before the court. Mr McGinty also took the view that Mrs Ross was correctly and properly performing her functions as an interpreter. Mrs Ross gave evidence that she is a Thai national but married to a British man and has lived in the United Kingdom for 17 years. She has worked as an interpreter for ten years. She said that during the interview she had sometimes repeated the question or asked the applicant whether he had understood the question but this had not happened very often. As far as she remembered the applicant had no difficulty with his answers. She did not threaten the applicant. He answered some questions in English. She had not met Mr Davies or Mr McGinty before. Three interviews were conducted on 2 March 1989, two of them with other men found at the restaurant. Her recollection was that Mr Davies was writing down everything that was said. She had little recollection of the substance and content of the interview and I would have found it surprising had she had a detailed recollection. She saw nothing in Mr Davies's behaviour to frighten the applicant. She did not think that the applicant was being awkward with Mr Davies. It is clear from the custody record at page 50 of the bundle that on 2 March 1989 the applicant was offered and declined a solicitor. The custody record would have been kept, of course, not by any of the witnesses in the present case but by the responsible police officer at that police station. It is clear that the refusal, which is noted in the custody records with the signatures both of the applicant and Mrs Ross alongside, was made in the custody room of the police station and not in the interview room. Mrs Ross could not remember speaking with the applicant other than at the interview. She must have done but, having regard to the lapse of time, her error on that point does not in my judgment cast doubt upon her credibility. I found her a credible witness. It is alleged against Mrs Ross, and she was cross-examined on the question, that she was not a proper person to act as interpreter in cases involving Thai applicants. She agreed that she is married to an immigration officer, though that fact forms no part of Mr Ryde's allegations against her on behalf of the applicant. The bulk of her work as interpreter was for the immigration authorities. The regularity depended on the incidence of arrivals. She agreed that her performance as an interpreter had been attacked in newspapers once or twice, two or three years ago. She also agreed that on an occasion in February 1989 she had been discharged by the judge from acting as an interpreter in a case at Southwark Crown Court when an allegation had been made against her that outside court she had spoken with a witness about the case in which she was acting. She agreed that the matter had been referred to the Crown Prosecution Service. She said that her conversation with the witness on that occasion had been "normal, chatty". It was about the witness's daughter and her shop. The allegation that she had spoken about the case was false. It is common ground that no action was taken against Mrs Ross as a result of the allegation made in February 1989. Later in that year she was reinstated as a potential interpreter. It was suggested to her that her sympathies lay with the immigration authorities. She denied that and said that she just did her job. She knew nothing about the applicant before his interviews. It was not she who put the questions. She only translated them. She tried to do her job in a straightforward and honest manner. The applicant gave evidence that, when in Thailand, he received a letter from Mrs Kidd saying that it was better to go to England to study so that on his return to Thailand he could have a better job. The letter had referred only to study in England. At first he did not want to come to England. He was having fun in Thailand and he had no friends in England and knew no English. He was not involved in making the arrangements for his studies. He did not want to stay as long as 12 months in England. The visa officer on 27 October 1987 had not asked him about work in the United Kingdom. He said that he was going to study and that he did not want to study anything else but the English language. He knew about the restaurant his sister and brother-in-law operated in England. His sister had not told him that he would have to give something in return for the services he was receiving. In England he had sometimes helped his sister in the restaurant when it was very busy but he was never employed either by Mr and Mrs Kidd or by Mr and Mrs Starke, the ownership in the restaurant having been transferred to them. When the immigration officer entered the kitchen on 1 March he was preparing food for himself and a friend, Mr Vichaya Viriyachaikul, who worked at the restaurant. He was wearing overalls or, as he later said, an apron because he had had a shower and had put good clothes on because, after the meal, the two of them were going out and he wanted to protect his good clothing. He had never been arrested before. He spoke with a solicitor on 1 March at the police station for about 20 minutes. An interpreter was present on that occasion but not Mrs Ross. He agreed that he had signed the custody record at page 50 on the morning of 2 March. That followed a conversation with Mrs Ross who had spoken to him just like a friend and asked him if he had slept well. He said that he accepted advice from her and that he would not need a solicitor. He said that he had not slept well and he was feeling dizzy because of a smell of new paint in the police station. When he went to be interviewed he was frightened and the interview lasted about one and a half hours. At first the tone of the interview was very good. However, Mr Davies then shouted, pointed a finger at him and hold him to answer only, "Yes" or "No". Mr McGinty just sat and listened. The applicant said he was very kind. Mr Davies was angry and said if he was not happy with the answers there would be trouble. Mrs Ross said that if the applicant did not make the officers happy he would get into trouble. The applicant said that, to avoid any trouble, he changed his mind and made the admissions which are recorded -- and it is accepted accurately recorded -- in the interview. No complaint is made that the record does not set out answers which were given in Thai. He did not give true answers because of his fright. To make them happy he said he was earning @90 a week. In fact he did not earn money in the United Kingdom. All he had was @10 a week pocket money from Mr and Mrs Kidd. At first he had not been happy in the United Kingdom. His attitude to this country has changed and he does not feel now that he has finished his English studies. He wants to try longer and is attempting admission to the City College. That had not been his intention when he first arrived here. He had not been happy with the interview at which Mrs Ross was the interpreter. His sister asked for another interview and he was happy with that suggestion. In cross-examination he was asked how often he had helped his sister at the restaurant and he said once a week or maybe once in two weeks or maybe twice a week. He denied that he was standing at the sink and chopping vegetables when the immigration officer entered on 1 March. He was working at the cooker frying chicken and vegetables mixed together. When he was asked whether he had permission to work he said he was not working and that he had just come to the restaurant to see his friends who were working at the restaurant. He was asked about the interview on 2 March. He thought that Mrs Ross would be fair to him as she was a Thai. Some of the interview was in English, but he did not understand all the questions. Mr Davies was not writing for the first 15 to 20 minutes and the applicant accepted that he was cautioned by Mr Davies. He was shaking during the interview and after about an hour he gave way and made admissions. When asked about his earlier interviews with the visa officer and immigration officer he said that he did not know whether he had mentioned the restaurant to the immigration officer. He had had a long flight and was tired. It was his first trip abroad. He had not wanted to come here at all at that time. He agreed that, after the interview on 2 March, there had been a telephone conversation with a different interpreter and he said that he gave the same answers to that interpreter because he wanted to be consistent. However, what he had said was not the truth. Mrs Ross had used quite a high voice and had threatened him saying, "Do not be silly. If you do not make the officers happy there will be big trouble and for your sister and brother-in-law too". He would not have been disappointed had he failed to get entry in April 1988. Mrs Kidd gave evidence that she had looked after her half-brother from the time his mother died until now. It was her idea that the applicant should come to England to learn more English. She had sent money to Thailand to enable her sister to look after the applicant. She agreed to marry Mr Kidd only on the basis that he would sent money to Thailand. She did not want to look after the applicant following his course of study in England. Her object was that by learning English he could return to Thailand and get a good job. She paid him only @10 per week pocket money. Sometimes he asked for more. They sold the restaurant after he arrived. She had decided to ask her brother to come to England before she married. He helped in the restaurant sometimes but not often. He was a very lazy boy. There was a tradition in the Thai community that they assembled and ate at the local Thai restaurant. There was a family atmosphere. That would continue to apply, as far as the applicant was concerned, even after the restaurant was sold to Mr and Mrs Starke. The applicant's help in the restaurant had only been of a casual kind. Mrs Kidd was concerned that he concentrated on his studies and, in any case, he was not feel well. She denied that she had paid the applicant @90 a week or anything like that or that he was expected to work in return for the payment for his studies. Having considered the evidence, the interview on 2 March was, in my judgment, conducted in a proper manner. I accept the evidence of Mr Davies, Mr Mcginty and Mrs Ross. Such differences as exist between the evidence they give are not, in my judgment, of a material kind and do not affect my general acceptance of their credibility. I bear in mind that the applicant's English was limited and that he was in a situation of stress to which he was not accustomed, but I am quite unable to find that any improper pressure was placed upon him. The suggestion that he gave up and made admissions after an hour is not supported by the fact that an admission is stated in the summary note of the earlier part of the interview. The applicant had a further opportunity when speaking on the telephone to Mrs Sullivan -- another interpreter -- and he repeated the admissions which he had made. I note that he had a conversation on 1 March with a solicitor. In cross-examination of Mr Davies it emerged that the solicitor had told Mr Davies that the applicant had not wanted a solicitor to be present when the interview was conducted. I accept Mr Davies's evidence that the applicant was asked questions properly. There was adequate interpretation where that was required, as it was for most of the interview, and the answers were "coming straight back." Furthermore, I regard the admissions as reliable. I consider that when he was interviewed on 2 March the applicant was telling the truth. The point is made on his behalf that he did refer to the restaurant when interviewed in Thailand by the visa officer. That, it is submitted, indicates his good faith and had he had the intention alleged by the respondent he would not have mentioned it at that interview. I also accept the evidence of Mr Davies as to the circumstances in which the applicant was found in the restaurant. He was working at the sink, in overalls, chopping vegetables. When asked if he had permission to work he merely said, "No". That supports the evidence given in his admission that he was working, and working for a substantial wage. In reaching that conclusion I give such weight as I can to the suggestion that it would not be uncommon for a Thai to be working in a kitchen preparing his own meal and not working for money. In my judgment, having considered the evidence, it was always intended by the applicant that he would work in the restaurant in return for the help being given him by his sister and her husband. It was with that intention that he came to the United Kingdom. He would study and he would work for reward in the restaurant. I reject the suggestion made by Mr Ryde on the basis that I am against the applicant on the facts that, if there was an intention to that effect, it was the intention of Mrs Kidd which was not communicated to the applicant. I do not consider that Mrs Kidd would have practised what would have been an unpleasant deception on her brother when suggesting that he should come to the United Kingdom. He worked at the restaurant. He earned @90 per week. That, of course, is denied and there is no documentary or other evidence as to how that money was spent on the basis that, as I have found, it was paid to the applicant. There is no suggestion that it might have been sent to Thailand or used for something extraneous to the applicant's ordinary costs of maintenance. My finding is that he did receive that sum of money weekly and he used it for his maintenance as defined in rule 21. That, of course, still leaves the question as to whether the respondent has proved to the appropriate standard that he obtained entry by a material misrepresentation. The point is made on the documents and evidence that the applicant was never asked in terms -- when he said he wanted to study in the United Kingdom -- whether he intended to work here. I need to refer to the notes of the interview with the visa control officer. It is accepted that I can give weight to that note although Mr Ryde says the weight should be limited. It is stated at page 70, "Applicant wishes to enter the United Kingdom for a period of one year for the purpose of following an English language course only. No intentions of taking up any other form of study". Mr Jay, for the Secretary of State, relies on the expression "the purpose" and the word "only". Mr Ryde says that the weight to be placed upon the word "only" is eliminated by the sentence that follows which was in relation to other possible forms of study and not work. At page 71 it is stated, "All expenses for study and maintenance while in UK were to be met by his brother-in-law, Mr Richard Kidd, supporting evidence attached". I have already referred to the point made on behalf of the applicant that, in the note of interview, there is a reference to Mr Kidd being the owner of a Thai restaurant. I am not satisfied that that information came from the applicant. It is clear from page 71 that the officer had other information about Mr Kidd's restaurant. Having regard to the burden of proof I am prepared to assume that it was mentioned by the applicant. However, it was mentioned in the context of an interview about the family background and not when considering what his intentions and plans for the United Kingdom were. I do not consider that the presence of that reference either casts doubt upon the credibility of his admissions on 2 March -- when he said that he had not mentioned the restaurant -- or that it deserves any substantial weight when considering the question whether a misrepresentation was practised within the meaning of the law. The note of interview on 2 March is in the bundle, and I read pages 62 and 63: (The applicant) -- "A -- I knew I was going to work in the restaurant in return for her helping with my studies and if I had mentioned this he would not have given me a visa. For this reason I kept quiet about the restaurant. Q. When you arrived at Heathrow on 23 April 1988 did you see an immigration officer? A. Yes. Q. Did he ask you any questions? -- A. The immigration officer asked me how long I was going to stay, what I was going to do and who was paying for the studies. Q. How did you answer those questions? -- A. I said I was going to stay for one year to study English and that my sister would pay for the studies. Q. Did you mention that she had a restaurant? -- A. No. Q. Did he ask you what she did? -- A. Yes, I said she was married to an Englishman and was just living here. Q. Why did you not mention about the restaurant? -- A. Because I knew I was going to work there and if I had mentioned about the restaurant they might have suspected this." [I interpose that the interviewer at that time did not have the visa officer's note.] "Q. Why did you not tell the immigration officer that you intended to work in this country to pay for your studies and accommodation and living costs? -- A. Because he would have sent me back to Thailand. Q. Have you worked since coming to the UK -- A. Yes, as soon as I arrived I started work in the restaurant you found me in last night. Q. Have you permission to work there? -- A. No. Q. How much do you earn? -- A. @90 per week. Q. Did you know you needed permission to work there? -- A. Yes." In my judgment the information in those documents which comes from the applicant amounted to a representation that he would not work in the United Kingdom and that his sister and brother-in-law would pay his costs of maintenance. This was not a mere non-disclosure. In fact, he intended to work for a wage and did so on arrival in the United Kingdom. As to the materiality of those representations, if the true facts had been known to the relevant officers they would have been bound to refuse leave to enter. I believe that was well understood by the applicant. The representation made was a representation within the meaning of the authorities and was material to the entry obtained. Mr Ryde's further submission is that the decision should be quashed on the ground of bias. It is not submitted that the decision-makers were biased. It is submitted that Mrs Ross was a person involved in the procedure which led to the decision and she was not a proper person to act as an interpreter. The circumstances gave rise, Mr Ryde submits, at least to an appearance of bias. Even if all facts are found in the respondent's favour, including the fact that the interview was conducted in a proper manner, the appearance of bias was such that the decision should be quashed. To establish an appearance of bias, Mr Ryde relies upon a newspaper article in the Siangthai -- a Thai language magazine -- which appeared in March 1989 and almost certainly after the date of the interview, although that assumption is not material to my general finding. Allegations are made against Mrs Ross in her capacity as an interpreter over the years in that article. Second, Mr Ryde relies upon the fact that in evidence Mrs Ross admitted that similar attacks were made upon her in the newspapers once or twice, two or three years ago, including a suggestion that she had not used a word correctly. The third matter relied on is the evidence that an allegation was made against Mrs Ross when she was acting as an interpreter in the Southwark Crown Court in February 1989, shortly before the relevant interview. When summarizing her evidence, I referred to the nature of the allegation. Mr Jay, for the Secretary of State, reserves his position as to whether, on the present findings of fact, it is open to the applicant to allege bias in this sense as a ground for quashing. He further submits that the circumstances do not show an appearance of bias such as would justify quashing the decision. Mr Ryde submits that, once allegations are made against a person such as an interpreter, the suspicion of bias must be dispelled by persuasive evidence that the allegations are untrue. I cannot accept that as a general principle. If that were so it would be open to individuals or newspapers to make allegations against a public officer. The mere making of those allegations, in the absence of a detailed reply to them before the relevant tribunal, would disentitle the person from performing his or her public duties. However, Mr Ryde submits that the particular allegations here in the absence of rebuttal would create a suspicion of bias in a reasonable bystander. I cannot accept that the mere placing before a court of a newspaper article containing allegations advanced Mr Ryde's case at all. The other allegations need separate treatment. There is evidence in the form of an affidavit from a police officer that he was in receipt of an allegation with respect to Mrs Ross's conduct at Southwark Crown Court. In substance there is a reply to that allegation. First and principally, there is the denial of Mrs Ross that it was a true allegation and I believe her evidence. Second, there is the fact that there have been investigations into the complaints. The chief immigration officer at Stansted airport, Mr ML Clark, has sworn an affidavit in which he states that the earlier complaint against Mrs Ross was investigated at a very high level and found to be baseless. Further, there is evidence that the Southwark allegation has been investigated that no further action has been taken against Mrs Ross and she is on the list of interpreters who can act in appropriate cases. However, I cannot accept the submission that in all cases evidence that the person concerned has been cleared of the allegation must be produced. In this case, although my decision does not depend upon it, I would not have found reasonable suspicion of bias such as would justify my quashing the decision even without the affidavit evidence of the investigations conducted when allegations were made against Mrs Ross. I have been referred to the recent case of R v Batth (unreported) which was a decision of the Court of Appeal, Criminal Division, the judgment of the court being given by the Lord Chief Justice. In that case a judge in the course of a trial had spoken at a public dinner and, it was alleged in the newspaper report, at that dinner he had made remarks which, if true, indicated a bias on his part. The Lord Chief Justice referred to the statement of Lord Denning MR in Metropolitan Properties v Lannon [1969] 1 QB 577, and added: "The important matter was, therefore, not what the appellant might think about the judge, but the appearance, as it presented itself to the objective observer. Unfortunately, the recorder did not, in his remarks in court, particularize the nature of the misreporting about which he complained. Their Lordships had to judge the matter as best they could on those facts. They had come to the conclusion that they did raise an appearance of bias, which was not displaced by the recorder's bare assertion in court." In the absence of a full explanation the Lord Chief Justice set out the type of explanation he would have expected in that case. The court was driven to the conclusion that the appearance of bias had not been removed. Mr Ryde submits that the principle covers the present situation. It means that when allegations are made a full explanation is required. Mr Ryde submits that Mrs Ross has not been so thoroughly exonerated by the investigations conducted as to remove the suspicion of bias. In my judgment the situations are very different. Mrs Ross's position is different from that of the learned judge. She accepts that a number of allegations have been made against her. She denies that they are true. Reference is made to the circumstances and to the investigations which have been conducted. Regard must be had to the role which she was performing, which was that of an interpreter, and not the decision maker himself. In my judgment a reasonable person would not consider that there was a suspicion of bias in the circumstances which existed in this case. I do not consider that more needed to have been done by Mrs Ross or on behalf of the respondent to remove suspicion. I have made findings of fact upon her conduct. I accept for present purposes, that there could be a case in which circumstances existed in relation to an interpreter which might create a reasonable suspicion or an appearance of bias. I do not consider that the present case comes within that category or indeed anywhere near it. I reject too this further submission made on behalf of the applicant. In those circumstances the application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Malkin, Cullis & Sumption, London WC2 (agents for Overbury, Steward & Eaton, Norfolk); Treasury Solicitor