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

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

Queen's Bench Division

[1993] Imm AR 13

Hearing Date: 5 May 1992

5 May 1992

Index Terms:

Illegal entrant -- granted entry clearance and then leave to enter on application made as a short-term visitor -- subsequently acknowledged he had always intended to seek settlement in the United Kingdom -- whether Secretary of State entitled to treat applicant as illegal entrant.

Illegal entrant -- interview by immigration officer -- extent to which immigration officer bound by the Code laid down by the Police and Criminal Evidence Act 1984. Police and Criminal Evidence Act 1984 s 67.

Judicial review -- last minute application for witness summons -- approach adopted by the court.

Held:

The applicant for judicial review was a young citizen of Nigeria who had been granted leave to enter the United Kingdom as a short-term visitor: he had been granted entry clearance on that basis. Shortly after he arrived in the United Kingdom application was made on his behalf for settlement. He was interviewed. The Secretary of State concluded that he had always intended to seek settlement. He had accordingly entered by deception. The Secretary of State decided he was an illegal entrant. On judicial review it was submitted, inter alia that the Code to be observed in the examination of suspects had been breached. The conduct of the interview being in issue, there was a late application for the immigration officer to be called as a witness. Held 1. It was too late to entertain an application to call the immigration officer as a witness. Solicitors for the applicant had been asked earlier by the respondent's solicitors to indicate whether they wished the immigration officer to be produced and had not responded. Moreover after so long a time it was doubtful if the cross-examination of the immigration officer would advance the case, there being in any event full notes of the interview, in evidence. 2. On the facts, the Secretary of State had shown, to the requisite high standard, that the applicant had entered the United Kingdom by deception. 3. There was no evidence of impropriety in the conduct of the interview. Immigration officers were not within the classes of investigators covered by the relevant section of the 1984 Act. It followed the Code did not apply to their interviews with the same force as it did to others. The court recognized however that the Secretary of State had decided that immigration officers would apply relevant aspects of the Code to the conduct of their interviews.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139.

Counsel:

Miss JS Pasiuk for the applicant; Miss A Foster for the respondent PANEL: Macpherson J

Judgment One:

MACPHERSON J: An application is made beyond the eleventh hour and fifty-ninth minute to have a Mr Hobley called as a witness so that he may be cross-examined about an interview which he held with the applicant in the present case. That interview took place in the presence of the applicant and the applicant's half-brother Mr Banjoko. The applicant was told that they should apply before the hearing by the Treasury Solicitor as long ago as 8 April if they wished the witness to be present and no application has been made until the morning of the hearing. Furthermore the long and careful affidavits filed by Mr Hobley and others on behalf of the respondent exhibited the handwritten notes of the interview which were taken at the time showing what the situation was. All that would happen in my judgment would be that Mr Hobley would say what he says in his affidavit and refer to his notes. The matter was so long ago that he could do nothing else. I suppose that the quid pro quo of that would be that Mr Banjoko would have to be here in order to try to set out his case, which was that he was effectively told to shut up and play no part in the matter. The lie is given to that, as it seems to me, by the full handwritten notes taken at the time, which show that twice during the interview the young applicant was not only allowed but seems to have been encouraged to talk to his half-brother before the interview proceeded. I see no basis upon which it would be right to disturb the usual course in cases of this kind, which is to argue the case upon the papers. Of course it is right, as was said in Khawaja v Secretary of State for the Home Department [1984] AC 74, that there are cases where there should be cross-examination, but I am convinced that this is not one of them. The application must therefore proceed, if it is thought right that it will proceed, without cross-examination. (Counsel then addressed the court on the substantive hearing) In this case Miss Pasiuk applies, on behalf of Olukayode Okusanya, for judicial review of a decision made by the Home Secretary. That decision was made on 28 February 1990 and the details of the decision are set out, as usual, in a letter, signed in this case by Mr Peter Lloyd from the Home Office, which appears at page 44 of the bundle. I shall refer to that letter again. In my judgment it sets the matter out carefully and in full. It is necessary to give a short history of this young man's immigration activity. He applied twice to come to this country as a visitor. The documents appear again in the full respondent's bundle, which exhibits every relevant document. The first application was dated 1 December 1987. At that time the young man was 15 years old, because he was born on 30 May 1972. There is no need for me to refer to the whole of the application, but what he wished was to come to this country for three weeks as a visitor. He was at that time a student in Nigeria and he said nothing other than that he wished to visit his cousin, who was a barrister, named Mr Awoyemi, who lives in Woodstock Street. The form is available amongst the papers. He was seen about that on 1 December 1987, apparently, and the application was withdrawn on that date. On 7 December 1987 he applied again, and again he applied to come as a visitor simply for three weeks to visit his barrister cousin. He was actually allowed to come in for a five-month visit. That is the extent of his disclosure to the immigration authorities in Nigeria of his intentions. He was of course applying for entry clearance as he was bound to do, because he had no right to enter the country without such clearance. In he came and within a very short time -- in fact within four or five weeks -- solicitors wrote on his behalf asking that he should be allowed to stay in this country for an indefinite period. The letter is dated 19 January 1988, from Cohens, and what the applicant wished to do was to remain in Britain, in order to be naturalised and become a British subject and to obtain, hopefully, a place at a university or polytechnic. It was not a question of him applying simply to stay temporarily as a student. His intention was to remain in Britain permanently so that he could be naturalised in 1992. That application was reinforced by a further letter dated 12 April 1988 from the same solicitors setting out certain facts about the applicant's background and indicating again that he wished to obtain clearance for settlement purposes. The Immigration and Nationality Department did not reply for rather a long time, but in February 1989 a letter went back to the solicitors asking for a very considerable amount of information about this young man. It seems to me likely that by that time the authorities were suspicious, because he had applied for leave to enter for only three weeks for a short visit when he was a student, yet within a short time he was indicating his wish to remain here permanently. The result of that was that somewhat later, on 12 July 1989, an interview was arranged with this young man in Manchester. He was seen together with his half-brother, whose name is Mr Babatunde Banjoko. That man shared a mother with the applicant. He was born in 1964, so he was fully adult. A good deal, if not everything, turns upon the answers given by the applicant at that interview. Early in the case Miss Pasiuk applied for an adjournment so that Mr Hobley, the man who conducted the interview, could be made to come to court for cross-examination. I refused that application because it was made much too late, and also because in my judgment it would be very unlikely that anything would be gained from cross-examination of him, and of Mr Banjoko, and perhaps of the applicant in order to determine the truth. The fact is that there were comprehensive notes made by Mr Hobley of the interview, which are now exhibited to the affidavit which has been filed on his behalf. They show that there were considerable preliminary discussions before the applicant did what he indicated he wished to do, namely, to tell the truth about the matter to Mr Hobley. It is said that there are reasons why that interview should not be considered by the court. Further, it is argued that the interview was inadmissible because it was made in breach of the relevant code applicable in cases of this kind. Section 67 of the Police and Criminal Evidence Act 1984 does not in fact apply to the immigration authorities with the same force that it applies to the police, customs and others who interview people in connection with crimes. Section 67(9) of the Act provides: "Persons other than police officers charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of such a Code." But immigration officers are not so charged. On the other hand, the Home Secretary has nevertheless over the years decided, quite rightly, that immigration officers will apply relevant aspects of the codes in the investigation of matters which concern them, and this particular case was of course a case in which the immigration department suspected that this man was an illegal entrant and was therefore guilty of an offence under section 26(1) of the Immigration Act. That Act prohibits the making of false statements known by the maker to be false at the time or not believed to be true. It is of course the essence of this case that what this applicant said in the application forms, to which I have referred, was simply untrue. I have looked at the codes, which have been in operation since 1986, and it seems to me that with one exception there is no validity in the argument put forward in connection with them. It may be said that an appropriate adult, namely, Mr Banjoko, was not specifically informed that he was not expected to act simply as an observer. I say that because there is no reference in the note of the interview to anything of that kind being said to Mr Banjoko. On the other hand, Mr Banjoko was the half-brother of this young man. He was present throughout and it is palpably proved in my judgment, in so far as notes refer to it, that twice during the process before the relevant answers were given Mr Banjoko spoke privately with his brother. The references to those private conversations appear at page 77, and after the second of them the applicant said, as the note records and as the affidavit of Mr Hobley confirms, that he would tell the truth to the officers. Thereafter a note of the questions and answers given was made by the officers in a form which is set out at pages 12, 13 and 14 of the applicant's bundle. Form ISCP 4 was used for the purpose of recording the interview itself and the questions and answers appear following a caution which was read out by the officers. The notes of evidence were signed by the applicant and witnessed by Mr Banjoko, and also signed, of course, by the immigration officer Mr Hobley. Each question and answer is initialled by the applicant. And where there are alterations made in the document, those alterations are also initialled by the applicant. I am bound to say that I see no impropriety in anything that took place in connection with that interview. By the time he was interviewed this young man was 17 years old and some months. For the purposes of the code he would not strictly be regarded as a juvenile, but it is right, giving him the benefit of any doubt, that he should be treated as such for my consideration of the case. I see no reason to believe anything that he said to the immigration officers was anything other than the truth. It is of course a fact that Mr Banjoko says in his affidavit that the applicant was in some way pressurized, but no chapter and verse is given of what is alleged in that regard. It seems to me impossible to accept that any pressure was exerted when one looks at the terms of the questions and answers and refers also to the full notes of what took place at the interview which were recorded at the time by the immigration officer. Furthermore I have full affidavits from Mr Hobley and all concerned on the respondent's side in order to assist me in reaching the necessary conclusion which I have to reach. What I must decide is whether upon the evidence the Home Secretary was entitled to decide that this young man was an illegal entrant. I have to look at the evidence myself. I have to reach my own conclusion upon the matter just as the Home Secretary did upon the evidence before him. I have to bear in mind that the onus is upon the Home Secretary to establish that that is the position, and I have to bear in mind that the burden of proof is a high one. If it is not exactly as high as the criminal standard, it is very nearly as high as that and it seems to me right, bearing in mind the age of this young man, that I should be alert to the position that the Home Secretary must be satisfied to a very high degree of probability of the position. I turn then to the interview, and it only requires reference to two or three answers to see what was said. And, if what was said was said, there was no escape whatever from the conclusion that the Home Secretary reached. I read two or three of the questions and answers, but the whole interview should be read in order to obtain all of its flavour. After asking about the original application this question was asked: "Q. Why did you not return to Nigeria after 3 weeks? A. Because I was going to stay permanently with my brother Mr Banjoko in Manchester. Q. Was it your intention to stay permanently when you first arrived in the United Kingdom? A. Yes. I had hoped to, but it was up to my brother. Q. Why did you wish to stay here permanently? A. Because I have nobody else in Nigeria. Q. What did you intend to do in the UK when you arrived? A. I want to continue my education and get a good job. Q. Why did you not tell the immigration officer this when you arrived in the UK? A. I couldn't tell him because it was really up to my brother Mr Banjoko whether I stayed or not." That may perhaps be partly true, because, I suppose, Mr Banjoko, with whom this young man evidently intended to stay, could have refused after a time to keep him. But the question is: what was this young man's intention when he came here, and, furthermore, also when he filled in, signed and pursued the application to come here as a visitor for three weeks? The fact is, of course, that his application was simply to come in for three weeks both when he signed the form and when he arrived on the face of it because he said nothing to the immigration officers about his wish to remain here permanently or to get a job here or even to be educated here for a limited period of time. He put himself forward, without any question, as a short-term three-week student visitor, when in fact he admitted to the immigration officers that he was nothing of the kind. That is the conclusion which the Home Secretary and, of course, the officials before him reached, and that is what is set out in the letter from the Home Secretary to which I have already referred. It must be added however that after that interview the applicant was seen again on 15 November. Strictly perhaps what happened at that interview and what was discovered as a result of it does not bear on the original question, but it does seem to me relevant to note that what was said at that interview did not tally with what was discovered to be the true position in Nigeria. As Miss Foster said in the short submissions which I found it necessary to ask her to make, there were many inconsistencies compared with the true position of his family relationships and his family affairs as they were in fact in Nigeria. In accordance with his duty the Secretary of State looked very carefully at the matter, as his letter indicates. He concluded that both he and his officials were not only entitled but were compelled to the conclusion, if that interview was true, that this man was an illegal entrant. They so concluded in 1990. He has been here ever since but he must now go. He had a right of appeal, if he had wished to pursue it, from abroad; whether that right of appeal is now alive is a very doubtful matter. The fact is that he could have appealed from abroad but chose not to do so. I finish this judgment simply by indicating that this is not a refusal forever of the right or the permission which may be granted to this man to come to this country, as the Home Secretary himself indicated. The applicant can at any time apply for an entry clearance to return here, but he will have to satisfy the entry clearance officers that he qualifies for entry within the immigration rules. Of course, I understand that he may wish to remove the stigma of having been found to be an illegal entrant. That he could have done by pursuing his route of appeal. Such a conclusion is however not fatal to any further application that he may make in the future. If he has been misled by his elders in the past, when he was young, into making an application which was not a frank one, then that is something which he will be able to blame upon them. But he is now a 22-year old and if he wishes to come to this country he must apply afresh. I have looked at the original grounds as drafted by Mr Alper Riza QC. They do not entirely tally with the argument put forward by Miss Pasiuk, but it seems to me that neither those grounds nor the matters raised before me today have any strength which would allow me to say that the Home Secretary was wrong in his conclusion. Furthermore I am convinced upon the evidence which has been shown to me that the weight of the evidence and the strength of the case is such that the Home Secretary was perfectly correct in his conclusion and that this young man must now leave the country. In all those circumstances the application is refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Sushma Lal, Oldham; Treasury Solicitor

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