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

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

Queen's Bench Division

[1991] Imm AR 378

Hearing Date: 26 March 1991

26 March 1991

Index Terms:

Leave to enter -- refusal -- applicant claimed to be returning resident -- immigration officer concluded that indefinite leave stamp was a forgery -- whether material before immigration officer justified refusal of leave to enter -- whether judicial review appropriate way to challenge decision of immigration officer -- whether court should approach the application on the Khawaja principle. HC 251 paras 58, 78.

Leave to enter -- refusal -- whether reasons in notice adequate. Immigration Appeals (Notices) Regulations 1984 r 4(1)(a).

Leave to enter -- refusal -- second notice issued with amended reasons for refusal -- whether in consequence notice, for the purposes of schedule 2 to the 1971 Act, was given out of time. Immigration Act 1971 (as amended) sch 2 para 6.

Held:

Application for leave to move for judicial review. The applicant was a citizen or Sri Lanka who asserted that he had been granted indefinite leave to remain in the United Kingdom. On return from a visit to Sri Lanka he was refused leave to enter. Initially the reason given was that he had secured indefinite leave by deception. After enquiry a second notice of refusal was issued which merely stated that he had not had indefinite leave when he last left the United Kingdom: in fact the immigration service had concluded that the material stamp in his passport was a forgery. Counsel for the applicant argued that in view of the serious allegation of forgery, the court should approach the case on the basis of the principles set out in Khawaja. He also argued that the reasons given were inadequate: moreover, the second notice, changing the reason the reason for the refusal of leave to enter was the "notice" for the purposes of the second schedule to the 1971 Act and had been served out of time. Held: 1. This was a port refusal case: it did not relate to an illegal entrant and Khawaja did not apply. Following Swati the applicant's remedy lay by way of appeal to the immigration appellate authorities and not by way of judicial review. 2. The outline of the reasons, given in the notice, was adequate: the notice did not have to go so far as to assert that the passport stamp was a forgery. 3. The original notice was given in time: the second notice merely reiterated the refusal in the first notice and amended the reasons. The service of notice accordingly complied with the requirements of the Act.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1982] Imm AR 139; [1984] AC 74. Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88: [1986] 1 WLR 477.

Counsel:

E Cotran and v Kothari for the applicant; R Gordon for the respondent PANEL: Stuart-Smith LJ

Judgment One:

STUART-SMITH LJ: This is an application for leave to move for judicial review. The circumstances are that the applicant is a man of 30. He came here as a student in 1984 and from time to time had his stay extended. He qualified, so he says, in 1989 and was employed at the Royal Garden Hotel. His case is that on 6 December 1989 he went to the Home Office, handed in his passport and was given indefinite leave to remain. That was enforced by a stamp on his passport. On 7 February 1991 he went to visit his mother in Sri Lanka returning on 10 March. On returning, he sought entry under paragraph 58 of the rules. He was questioned on the tenth and he was questioned again on the eleventh of March in the presence of his solicitor. He was refused entry. The first notice of refusal, which is at page 9 of the bundle, said: "You have sought leave to enter on the ground that you had an indefinite leave to remain in the United Kingdom when you left and that you have not been away for longer than 2 years but this is not conclusive in your favour. I am satisfied that the leave given on 6.12.89 was obtained by deception. I therefore refuse you leave to enter in accordance with paragraphs 78 of the Statement of Immigration Rules." However a short while later a letter was sent to him (page 12), in which it was said: "You were refused leave to enter the United Kingdom on 11 March . . . your case has been reviewed and while the decision to refuse entry remains unchanged the reasons for that decision have been amended. I attach herewith a revised Notice of Refusal of Leave to Enter." The revised notice is dated 14 March and it says: "You have sought entry for settlement claiming that you had an indefinite leave to remain in the United Kingdom when you last left but I am satisfied that that is so." The reasons for that emerge more fully from an affidavit sworn on behalf of the Home Office by Miss Middleton. She says that the stamp to which I have referred of 6 December 1989 is a forgery. She says that for two principal reasons. One is that the number RS 107.547 is not one which is issued. It is a unique number which is on the landing card. "When a passenger is landed on conditions the number is transferred to the passport. The numbers are issued in batches by the Home Office and I am informed that this number has not been issued, which indicates that the endorsement is a forgery. Further, I am instructed that the signature on that stamp is incorrect and therefore a forgery." She also alleges that a few other stamps on the passport are forgeries, one dated 7 November 1989 which purports to give the holder exemption from requiring a visa if returning to the United Kingdom to resume earlier leave before 20 April 1990, and another one which purports to show embarkation at Gatwick on 27 January 1990. Mr Cotran on behalf of the applicant submits that this is a Khawaja type case. It is a serious allegation of forgery and it must be proved up to the hilt by the Home Office and therefore on that ground alone leave ought to be granted. But it is not an illegal entry case. It is a case under paragraph 58 and it seems to me that the question is, under that paragraph which reads as follows: "A passenger returning to the United Kingdom from overseas, except one who has received assistance from public funds or the costs of leaving the country, is to be admitted for settlement on satisfying the immigration officer that he had an indefinite leave to enter or remain in the United Kingdom when he last left, that he has not been away for longer than two years and that he now seeks admission for the purpose of settlement." In my judgment this is not an appropriate case for judicial review, if the court is satisfied that there is material upon which the immigration officer could reach that conclusion. It seems to me that there was evidence here and material upon which the immigration officer was entitled to be satisfied that the applicant did not have indefinite leave to remain. That is the material which is put before the court in the affidavit of Miss Middleton. It is true that that evidence might go further. As indeed Miss Middleton suggests, there are other discrepancies in the stamps which it is not appropriate should be disclosed for fear of improvement in forgeries. In my judgment, so far as the question of judicial review is concerned, the court is looking at the material before the immigration officer and has to ask itself whether there was material upon which the immigration officer could say, as he did say, that he was not satisfied that the applicant had leave to remain here. In my judgment there was material for that. Moreover, as Mr Gordon points out, this is a case where there is an alternative remedy by way of appeal, albeit one which can only be exercised outside the country. The issue of whether or not this stamp is a forgery is not one which is appropriate to be dealt with by way of judicial review. It is more appropriate to be dealt with before an adjudicator where all the facts can be examined and cross-examination can take place. In my judgment the principle of alternative remedy, which is adumbrated in the case R v Home Secretary, ex parte Swati [1986] 1 WLR 477 and particularly by the Master of the Rolls at page 485C, is not confined to visitors or to students. In my judgment therefore the first ground upon which Mr Cotran seeks judicial review is not made out. He also criticizes the second document to which I have referred of 14 March and he submits that that does not comply with the necessary requirements of the rules because he says that the reasoning is too vague, namely: "I am not satisfied that you have indefinite leave to remain." He submits that it should have given more specific reasons, namely, that the document was a forgery. I do not accept that. In my judgment the outline of the reaons was sufficiently shown and I do not accept that that reasoning was inadequate. Secondly, it is said that the effect of the document of 14 March was that it substituted a new refusal notice and that it was out of time; it was not served within 24 hours as required by the rules. Again I cannot accept that argument. The original notice was given within the appropriate time. It is quite plain that the letter to which I have referred reiterates that refusal. It merely says that the reasons for the refusal have been amended and they are amended. It is no longer said that the indefinite leave was obtained by deception but that he had no indefinite leave to remain here because the stamp itself was a forgery. For these reasons in my judgment this is not a case where I ought to grant leave to move for judicial review. The application is refused.

DISPOSITION:

Application refused

SOLICITORS:

LN de Silva & Co; Treasury Solicitor

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.