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

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

Queen's Bench Division

[1993] Imm AR 505

Hearing Date: 23 April 1993

23 April 1993

Index Terms:

Leave to enter -- refusal -- previous variation of leave obtained by deception -- whether immigration officer entitled to conclude exclusion of the applicant from the United Kingdom was conducive to the public good -- whether in the light of the settled cases there was an issue of public law properly for resolution by way of judicial review. HC 251 paras 78, 86.

Held:

The applicant seeking leave to move for judicial review was a citizen of Nigeria who had been refused leave to re-enter the United Kingdom on his return from abroad. The immigration officer had concluded that his earlier variation of leave had been secured by deception: when granted variation of leave as a student he had represented that he was maintained by an uncle: in fact he had been working full-time. The breach of condition attached to his previous leave justified refusal of leave under paragraph 78 of HC 251. The immigration officer went on to refuse leave also under paragraph 86, he concluding that the deception by which the applicant had secured variation of leave justified also his exclusion as conducive to the public good. Counsel argued, following Olufosoye, that the nature of the deception practised by the applicant did not justify a decision to exclude the applicant from the United Kingdom as conducive to the public good. Following the dicta of Watkins LJ in Mum in, there were public law issues properly to be resolved by way of judicial review, and the principles laid down by Swati did not apply to the case. There were also exceptional circumstances that would justify a grant of leave to apply for judicial review. Held 1. Following Patel deception by way of a false representation justified refusal of leave on the ground that the person's exclusion from the United Kingdom was conducive to the public good. 2. There was no issue in relation to Olufosoye which in the light of the dicta of Watkins LJ in Mumin justified an application for judicial review. 3. There were no exceptional circumstances on the facts to take the case outside the ambit of Swati.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Cheema [1982] Imm AR 124. R v Secretary of State for the Home Department ex parte Nimewonty Anita Ramnial (unreported, QBD, 22 September 1982). Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88. R v Immigration Appeal Tribunal ex parte Anilkumar Ravindrabhai Patel [1988] 1 AC 91: [1988] Imm AR 434. Caroline Olufosoye v Immigration Officer, Heathrow [1992] Imm AR 141. R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1992] Imm AR 554.

Counsel:

G Warr for the applicant; R Singh for the respondent. PANEL: Popplewell J

Judgment One:

POPPLEWELL J: This is a renewed application by the applicant after refusal by Macpherson J to grant leave against a decision of the immigration officer, dated 2 November 1992, refusing leave for him to enter the United Kingdom as a student and giving directions for his removal. The basis of the decision is that the immigration officer is satisfied that the grant of leave to remain, imposed on 16 September 1991, was obtained by deception and in the light of this, his exclusion was conducive to the public good. This applicant is Nigerian. He came to this country in 1984. He has been studying on and off ever since. He has a wife and two children here. One of the children suffers from sickle cell anaemia. It is deposed to that when he sought to have his leave extended in 1991 he represented that he was being funded in the course by his uncle, and not by his own efforts. It is quite clear, from all the evidence, that he took on work. He worked for the Customs and Excise. It is deposed to by the immigration officer that if it had been known that he was not being financed by his uncle's undertaking, and that he was in full-time employment, his leave to remain as a student would not have been extended. This is a deception case. Mr Warr, in the course of a well-presented argument, has made a number of submissions. He says, first of all, that the authority of Olufosoye v Immigration Officer, Heathrow [1992] Imm AR 141 must apply. In that case it was said that the rule, which is rule 86, governing exclusion conducive to the public good, has to be something over and above the general rule contained in section 78 and that conducive powers should not be used as a mere afterthought. He goes on to instance the sort of cases where exclusion conducive to the public good should be invoked, namely; drugs, crime all cases involving matters of public or social policy. He says that simply to misrepresent who is paying for your education is not the sort of matter which can be properly included in the phrase, "conducive to the public good." He referred me to the decisions in the cases of R v Immigration Appeal Tribunal ex parte Cheema [1982] Imm AR 124 and R v Immigration Appeal Tribunal ex parte Patel [1988] 1 AC 91 and to an unreported case of McNeill J. It is clear from the decision in Patel [1988] 1 AC 910 that a false representation by the applicant to the immigration authorities that he was unmarried in order to enter the country is capable of coming within rule 86. The House of Lords said that: "The exercise by the Secretary of State of the power to deem deportation conducive to the public good on the ground that the immigration law has been avoided by dishonest deception is within both the literal meaning of section 3(5)(b) and the spirit of the Act." Mr Warr says that it is a mere afterthought. He contends that the reasons in the affidavit of Mr Hewett which sets out the facts, do not go on to say that those facts were taken into account to arrive at the conclusion to which the Secretary of State did. It is quite clear from the note prepared by Mr Brammer, dated 2 November 1992, that the matter was considered. The note says: "By working full-time in breach of his conditions to remain, he fell to be refused under para 78 of HC 251. Having then failed to inform the Home Office of his employment when seeking an extension in June 1991, the Leave to Remain was obtained by deception, in the light of which, his exclusion is considered conducive to the public good -- para 86 of HC 251 refers." I am not persuaded that in this case the Secretary of State was wrong to invoke paragraph 86 or that the decision which Mr Warr referred me to, Olufosoye, has any bearing on the instant case. The argument went from that to the question of whether Swati v Secretary of State for the Home Department [1986] Imm AR 88 should apply. Mr Warr's argument on that was that there was a matter of public law to be considered, namely, that the application must be considered in the light of Olusofoye as well as in the light of what Watkins LJ said in R v Immigration Appeal Tribunal ex parte Secretary of State (Mummin) [1992] Imm AR 554. Where there are uncertainties of public law issues it would be prudent to leave such matters to the court accustomed to dealing with it. It is submitted by extension of that argument that I should allow this application so that judicial review can run and not require this applicant to leave the country and then have to start all over again. In Form 86A it is urged that there are exceptional circumstances in this case namely that the son suffers from sickle cell anaemia and the wife has recently given birth to a child. If leave to remain is not granted, he will be forced to leave his wife in the United Kingdom. I am told, in Nigeria, the rights of the wife to stay are wholly dependent on the right of the applicant to stay. I can find nothing exceptional in this case. In all circumstances, I agree with the view of Macpherson J. If leave were to be granted it could only, in my judgment, be doomed to failure. Accordingly, I shall not grant leave.

DISPOSITION:

Application refused

SOLICITORS:

Hartnells, London, SE5; Treasury Solicitor