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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte DORDAS

Queen's Bench Division

[1992] Imm AR 99

Hearing Date: 3 October 1991

3 October 1991

Index Terms:

Illegal entrant -- domestic servant -- allegedly ill-treated by Kuwaiti employers -- arrived with employers in United Kingdom with entry clearance -- admitted as visitor -- allegedly had determined to escape from employers if opportunity arose during stay in United Kingdom -- ran away -- whether illegal entrant by deception -- whether a person who made no representation orally or in writing to either an entry clearance officer or an immigration officer could be an illegal entrant by deception -- Home Office party to the fiction that domestic servants were admitted as visitors -- whether Home Office could not subsequently go behind that fiction. Immigration Act 1971 ss 26(1)(c), 33(1).

Held:

The applicant for judicial review was a citizen of the Philippines: she had been working as a domestic servant in Kuwait. She had, she said, been ill-treated by her employers. She was brought by them to the United Kingdom. She ran away. Subsequently she was arrested. After interviewing her, an immigration officer concluded that she was an illegal entrant. She had decided to run away in the United Kingdom, if the opportunity arose, before she left Kuwait. It followed that when application was made for entry clearance as a visitor, and on arrival at Heathrow her true intentions were concealed. The immigration officer concluded she had entered the United Kingdom by deception. Neither when the entry clearance certificate was obtained on her behalf nor when she arrived at Heathrow, did she herself make any representations to the immigration authorities (albeit she had signed the application form for entry clearance as a visitor). Counsel argued, inter alia that a person who entered in those circumstances could not be an illegal entrant by deception. She also argued that admission of the applicant as a visitor, when she was in fact employed as a domestic servant, was a fiction to which the immigration authorities were a party: in the events which had happened, the Secretary of State could not, in the light of that fiction, subsequently assert that the applicant entered by deception. Held 1. The applicant on the facts made no false representation in Kuwait and no representation of any kind at Heathrow. 2. What was relied on was "her failure . . . to correct something said by someone else, which it is far from certain she actually heard or knew very much about": that could not amount to a misrepresentation for the purpose of s 26(1)(c) of the 1971 Act. 3. A person who made no representations either orally or in writing to a visa officer or an immigration officer could not be an illegal entrant by deception. 4. The court made no finding on the submission that where the Home Office was party to a fiction when a person was given leave to enter, it could not subsequently proceed against the person as an illegal entrant by deception.

Counsel:

Miss F Webber for the applicant; P Havers for the respondent PANEL: Kennedy J

Judgment One:

KENNEDY J: This is an application for judicial review of a decision of an immigration officer dated 24 April 1990 to the effect that the applicant is an illegal entrant as defined by section 33(1) of the Immigration Act 1971. The applicant is a Filipinio who was born on 17 January 1966. In January 1986 she went from the Philippines to Kuwait to work for the Al Sabah family. She was in due course assigned to the 20-year-old-daughter of that family. She contends that she was badly treated. In the summer of 1988 the family came to the United Kingdom for some two or three months and she came with them. It was her first visit. Thereafter, she returned to Kuwait. In June 1989 she came with her employers to the United Kingdom for a second time. On 4 August 1989, during the course of that visit, she ran off. On 24 April 1990 she was arrested and she was then interviewed. It was at the conclusion of that interview that the immigration officer came to the conclusion that he should decide in the way which is challenged in these proceedings. The question, therefore, arises as to whether or not this applicant was at the time of her entry to the United Kingdom an illegal entrant. It is said by the respondents that she was because she failed in Kuwait and at Heathrow in the summer of 1989 to reveal her true intentions in relation to the trip to the United Kingdom. The relevant section of the Immigration Act which is relied upon by the respondent is section 26(1)(c). It reads as follows: "A person shall be guilty of an offence (c) if on . . . such examination", that is to say in the context of this case an examination in relation to his intentions or her intentions on entry, "or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true." What then happened in Kuwait in May 1989? As to that, there is the evidence of the interview. This applicant told the immigration officer what she said happened. The relevant part of the interview reads thus: "I went to the British embassy with Sheikh MlBalek", who was the secretary, "and he arranged it for me". "How long were you supposed to stay", asked the officer, and the reply was: "They were supposed to stay for three months but after two months I ran away from them." In effect what the applicant was saying to the officer at that time was that she went along with the secretary. She was there but she made none of the arrangements. She was asked what her actual intentions were at that time. The officer said this: "When you left Kuwait did you intend to run away when you got here." She replied: "I thought I would if I got the chance." Miss Webber submitted to me that that was in fact ambiguous because she said a little later in the interview that she had the prospect of a holiday and that she would not have run away if she had been well treated. It seems to me that there is no real ambiguity there. She was indeed telling the immigration officer that before she left Kuwait she had formed the intention of running away if she got the opportunity, but she was indicating that had her employers been of a different kind she would not have formed that intention, certainly with the prospect of a holiday back in the Philippines. At the present time I have before me not only the questions and answers which formed the interview in April 1990 but also an affidavit which has recently been sworn by the applicant herself. In that affidavit she gives a somewhat different version of her intention at the material time. She says in paragraph 13 that she had no intention then of leaving her employment before she got to England and what in fact caused her to leave her employment was an incident which occurred on the day before she left, 3 August 1989. Mr Havers submits to me that I should prefer the information which is forthcoming from the interview to that which is now to be found in the affidavit because after all each of the answers to the questions asked at the interview was signed by this applicant and all I have by way of contrast with that is an affidavit of a much later date. I accept that submission. It seems to me that the reliable source of information as to her intentions at the time when she left Kuwait is the interview rather than the affidavit where they are in conflict. But that does not conclude my enquiries as to what happened in Kuwait, because it seems to me to be absolutely clear from the whole of the information that in reality this applicant, understandably, took very little part in the preparations which were being made in Kuwait, in particular in the British embassy, as to what was going to take place. She was there with the secretary but she had very little interest indeed in what was going on. She was asked, she said, a couple of questions. Her affidavit at paragraph 9 reads thus: ". . . I remember going to the British embassy before I came to the UK for the second time. I spoke to an officer there for a few minutes and I was asked whether I had any relatives here and I said that I had not. I was also asked if I had been to the UK before and I said that I had been here once before. I was not asked anything else and I did not know the purpose of the questions I was being asked." That seems to me to be entirely understandable. She also says, and it cannot be disputed by the respondents, that although she did sign an entry clearance form she did so in blank and it was filled in by the secretary or the embassy staff with what were considered to be the appropriate answers. It is true that the form indicated that the visit to the United Kingdom was for a limited period, and it seems to be clear that she knew in very general terms that the visit would be of a limited duration. but it also seems to me that it is understandable that she should not have said more than she did. She was after all an employee in a somewhat lowly position, who was in the embassy with a senior member of staff for the purpose of making preparations for a visit which she knew in general terms was forthcoming and was going to last for some time. In reality it seems to me that by being there with the secretary she made no representation at all beyond the fact of indicating by her presence that she was employed in the household and that she would be one of the persons who was going to the United Kingdom with the household. When she got as far as Heathrow it is quite clear on all of the evidence that what happened was that the party was escorted to the VIP lounge. There was no contact whatsoever, so this applicant says -- and there seems to be no reason to doubt it -- between her and any immigration officer. Thereafter she entered into the United Kingdom after the appropriate arrangements had been made for her by others. In those circumstances, what is said by Mr Havers is, "Here is an intelligent young woman". There is no doubt about that. She had for a time been at University in the Philippines training in radiology. He says that she had been to the United Kingdom before so she must have known something of what was going on. Again that is no doubt right. He says that she was at all material times aware of her employer's general purpose. Again that is obviously right. She knew that her employers were intending to go to the United Kingdom for a period. He says that she was being brought as one of their staff for what she must have known was intended to be the same period. Again that seems to me to be right. He then goes on to say that when she went with the secretary to the British embassy to get the visa she had a duty to speak up to indicate what her true intentions were, otherwise it can properly be said against her that she was a party to a false representation because she knew, or ought to have known, that it would be thought by the embassy staff that she was accepting that she was only going there for that limited period with the intention of returning to Kuwait at the end of it. That seems to me to be an unrealistic way in which to approach this matter. In my judgment, there was here no false representation in Kuwait whatsoever and there was no representation of any kind at Heathrow. Even if a false representation had been made, a representation which she knew to be false (in other words even if she had been present and heard the secretary say that the party would be returning at the end of three months) and even if she had already at that stage a firm intention of not herself returning but running away -- and it seems to me that neither of those matters are in fact established on the evidence -- I would be slow to find that what she did amounted to a representation because the circumstances were such that, in my judgment, it was wholly unrealistic to expect her to point out the error. She was a servant and it was inconceivable that she should say to the embassy staff or to anybody else: "Look, hold on a minute, I am actually going to run away when we get to the United Kingdom." One only has to postulate it to realise how ridiculous is the proposition. In those circumstances it seems to me that when what is relied upon is not something that she said but her failure, it is said, to correct something said by someone else, which it is far from certain that she actually heard or knew very much about, that cannot possibly amount to a misrepresentation for the purposes of section 26(1)(c) of the Act. Accordingly, in my judgment, the third issue which is raised by Miss Webber in her helpful skeleton argument is the issue upon which this applicant succeeds. Miss Webber formulates it in this way: "Can someone who makes no representations either orally or in writing to a visa officer or an immigration officer be an illegal entrant by deception?" By way of amplification she submits that in the peculiar circumstances of this applicant's case it is unrealistic to speak of her as having made representations or as having been in a position to do so. With respect, I agree. As to the other issues which were raised by Miss Webber, her first submission was in this form: "On the evidence in this case, can the court be satisfied that when the applicant entered the United Kingdom as a visitor on or about 31 May 1989 she did intend to escape from her employers?' For the reasons which I have indicated it seems to me that the court can be so satisfied because the evidence is to be found in the interview note, and I accept that interview note in preference to the affidavit in so far as they are in conflict. Secondly, Miss Webber raises this issue. If the applicant did have that intention, "is an intention to escape from employers equivalent to an intention to remain in the UK beyond the period limited by leave?" In the circumstances of this case it seems to me to be possible to take the view that her intention was as indicated in her answers to the immigration officer, to remain in the United Kingdom and work there if she had the opportunity to do so. I see nothing wrong with the conclusion which was arrived at in relation to that issue either. Similarly, the fourth issue, (issue D): "By conduct in this and similar cases has the Home Office waived its right to treat the applicant as an illegal entrant?" The point there being made is that applicants such as this applicant are permitted to come to the United Kingdom as the employees in a personal capacity of other people without having the normal sort of leave which would be arranged if they came for employment. They are treated as being visitors. That, says Miss Webber, is a fiction, and the respondents being a party to that fiction they can no longer go behind the fiction which they themselves have created. It seems to me that that is not a realistic point to take in the context of this case. The reality is that the deception upon which the respondents seek to rely is a deception to the effect that the applicant was going to leave at the end of the period in the United Kingdom. The question of whether she was admitted as a visitor or in some other capacity has very little to do with it. What is said by the respondents is that on or shortly before admission she had misrepresented her state of mind. That is something which, in my judgment, the respondents are entitled to say even though they normally treat persons such as this applicant as visitors for a short period of time in the belief that for the duration of that period they will continue in their existing employment. Accordingly, for the reasons which I have attempted to express, it seems to me that this application should succeed. This applicant, in my judgment, is not shown to have been an illegal entrant.

DISPOSITION:

Application granted

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor
 

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