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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte GHULAM YASIN

CO/295/95

Queen's Bench Division: Latham J

Illegal entrant - leave to enter granted - as a visitor-untruths told to immigration Officer as to intended length of visit-whether deception material interviewed subsequently under caution incorrectly translated by interpreter - whether record of interview should be admitted as evidence.

The applicant for judicial review was a citizen of Pakistan. He had been granted leave to enter the United Kingdom as a visitor for six months. He had said he wished to visit the United Kingdom for a fortnight as a tourist. He worked in breach of the condition attached to his leave. He was arrested and interviewed under caution. From his replies in interview the Secretary of State concluded that the applicant had lied to the immigration officer as to the purpose and intended length of his visit. The Secretary of State concluded he was an illegal entrant.

Before the court it was argued that the deception on entry was not material, Moreover the interpreter at the interview had incorrectly translated the caution: counsel submitted that in consequence the record of the interview should not be admitted as evidence.

Held

1. The untruths told by the applicant in interview were material. If he had told the truth he would have been subject to further questioning. A falsehood which avoided further enquiry was material.

2. It was lamentable that the interpreter had failed to carry out his duties properly and those events should not be permitted to occur again.

3.In criminal proceedings the interview would have been held to be inadmissible. However in an application for leave to move for judicial review other considerations applied. There would be cases in which it would not be appropriate to rely on an interview where the caution had not been properly administered, but in the instant case there had not been such an abuse of power as to lead the court to disregard the interview.

S Kadri QC and M S Gill for the applicant

R Tam for the respondent

Cases referred to in the judgment:

R v Secretary of State for the Home Department ex parte Jayakody [1982] 1 WLR 405: [1981] Imm AR 205.

Secretary of State for the Home Department ex parte Khawaja [19841 1 AC 74: [1982] Inim AR 139.

Remi Durojaiye v Secretary of State for the Home Department [1991] Imm AR 307.

R v Secretary of State for the Home Department ex parte Min,- [1994] Imm AR 216.

LATHAM J: This is an application by Mr. Yasin by way of judicial review seeking an order of certiorari to quash the decision of 13 November 1994 to issue a notice to him that he was an illegal entrant and to authorise his detention.

The circumstances in which the applicant came to be considered an illegal entrant can be stated as follows. For many years he had been a resident in Bahrain, although Pakistani by birth. On 4 October 1993, he applied for and obtained entry clearance in Bahrain which permitted him to seek leave to enter this country as a visitor. He did not use that entry clearance visa immediately but went to Pakistan. Whilst in Pakistan, he became involved, on the evidence before me, in a most unhappy situation which resulted in the authorities believing that he was guilty of the offence of murder. He remained in Pakistan, as I understand it, effectively in hiding, for about five months. He then determined, as will be apparent from the interview which he subsequently gave to an immigration officer and which I shall return to later, on the advice of his wife, to use the visa in order to obtain entry into this country so that he could avoid the consequences of the problems that he was in Pakistan. It appears, again from the interview, that he came to this country rather than returning to or staying in Bahrain because he did not consider that he would be free from problems if he remained simply in Bahrain. The consequence was that he arrived in the United Kingdom on 27 March 1994 and presented himself with the entry clearance to the immigration officer. There is no doubt that when asked by the immigration officer the purpose of his visit, he asserted that he was a visitor intending to stay in the Hilton Hotel and spend his time visiting museums, and so forth. He had with him £1,000. Not surprisingly, in the circumstances, he was given leave to enter. That leave was a standard six-month leave to enter as a visitor.

Having entered, there is no dispute about the fact that instead of going to London and staying in the Hilton Hotel he travelled to the north-west. Eventually, he made an application for leave to remain as a person who had a well-founded fear of persecution, for Convention reasons; in other words, he sought asylum. The authorities eventually discovered, as a result, I understand it, of information which had been received from others, that he was working in breach of the conditions imposed on his leave to enter and, on 13 November 1994, he was arrested and thereafter interviewed. There is no doubt that he was indeed working at the time. The contents of the interview were considered by the immigration officer responsible for the investigation of this case, who concluded that the applicant had obtained leave to enter as a visitor by deception and, as a result, served him with the notice of illegal entry. Shortly thereafter, the Secretary of State refused his application for asylum. He appealed to a special adjudicator and the appeal was dismissed. His application for leave to appeal, in turn, to the Immigration Appeal Tribunal was refused. On 29 December 1994, removal directions were issued. There is no challenge to the various decisions in relation to his claim for asylum. The matter comes before me simply by way of challenge to the decision to treat him as an illegal entrant.

The basis upon which he was so treated was the interview of 13 November 1994. It was an interview conducted through an interpreter. The record of the interview, which was the record on which the immigration officer based his decision, started with the caution in the normal terms: "You do not have to say anything unless you wish to do so. What you do say may be given in evidence". The reason that he was cautioned was, of course, that he was at the time under investigation not simply for the purposes of determining his immigration status, but for the purposes of questioning in relation to possible criminal offences.

During the course of the interview he accepted that he had told the immigration officer on entry that he intended to be here for a two-week visit. He accepted that he had told the immigration officer that he was going to stay in London, and he accepted that in fact that was not what he did. But he said that he decided, having obtained entry, that London would be too expensive and that, therefore, he had bought a ticket to Manchester.

The interview then uncovered the fact that he had been "blamed for murder" in Pakistan and that that was the immediate cause of his decision to come to this country. At one point in the interview, when he was asked whether he had ever been arrested in Pakistan for the offence of murder, he said:

"They tried to find me but I-"-then there is a passage which is either unclear or indicates that he did not in fact complete that sentence. Then he went on "-no intention of coming to London, but I was hiding.

Q. What would happen if the police found you?

A. My wife said that as I'd got the visa I'd better run.

Q. So your wife told you that as you had a visa you should go?

A. Yes."

He was asked at a different point in the interview how long he intended to remain in this country when he arrived. The answer was three months.

Against that background, and particularly bearing in mind what this applicant in fact did when he was in this country, it is not surprising that the immigration officer determined that the applicant had lied to the original immigration officer on entry. There was really no other conclusion to which he could come. The background was clear that, on the applicant's own evidence, he was on the run; and to say that he was here for a visit for two weeks to stay in the Hilton Hotel and simply to see the sights was, in the circumstances, a clear falsehood. It was a falsehood which was directly relevant to his entry into the United Kingdom because, as is well known, an immigration officer will only permit a person to enter as a visitor if he is satisfied that the person in question will leave the United Kingdom at the end of their period of visit. If this applicant, instead of indicating that he was here for what on the face of it appeared to be a perfectly ordinary holiday and with funds to meet the likely expenses of such a holiday, had told the immigration officer that he was here for three months, he would have been asked further questions. I have no doubt whatsoever that those questions could only, if he was truthful, have elicited the fact he was in this country for three months or until such time as he felt safe to leave and, in those circumstances, it must be a matter of considerable doubt as to whether or not he would have been considered a genuine visitor and granted leave to enter in that capacity. That was the factual background against which the decision was taken.

The applicant today takes two different points. The first point is that even if the information contained in the interview was reliable and should have been relied upon by the immigration officer, it did not amount to the sort of deception which vitiated his leave to enter. Mr. Kadri on his behalf relies firstly upon the definition of "illegal entry" in R v Secretary of State for the Home Department ex parte Khawaja [1984] 1 AC 74 at 118, where Lord Bridge said as follows:

"If the fraud was a contravention of section 26(1)(c) of the Act ... and if that fraud was the effective means of obtaining leave to enter-in other words if, but for the fraud, leave to enter would not have been granted then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was ‘in breach of the Act'".

He then referred me to R v Secretary of State for the Home Department ex parte Jayakody [1982] 1 WLR 405. It should be noted that that was a case before the case of Khawaja, but nonetheless contains material which Mr. Kadri submits is relevant to my consideration today. Lord Denning said this, at page 408G:

"Coming back to what I said at the beginning, the deception must be of a decisive character. It is only decisive when, if the immigrant knew the true facts and did disclose them, the immigration officer would have been bound to refuse or would in all probability have refused the entry: otherwise, if the deception is neutral, as in our present case, it is not of such a decisive character and the leave to enter is not vitiated".

It is said by Mr. Kadri that in the present case the immigration officer cannot say and has not said in affidavit that, had he known of the true facts, he would not have given leave to enter. Indeed, there is no information from that immigration officer by way of affidavit evidence at all. It follows, he said, that I should not categorise the deception which I have referred to as being of the sort to which Lord Denning made reference in that case.

But, as Mr. Tam on behalf of the respondent has pointed out, matters have progressed substantially since Jayakody. He has referred me in particular to a recent case of Ming [1994] Imm AR 216. In that case there had been a deception in relation to the obtaining of a work permit and it was held that the deception was one which vitiated the permit and infected the leave which was granted on the strength of that particular permit. After citation from he case of Durojaiye [1991] 1 Imm AR 307. Laws J concluded:

"… on the findings of fact which I have made. this authority"-that is Durojaiye-"directly supports (indeed impells) my conclusion that if the true facts had been revealed and the authorities thus put on enquiry, the possibility that the permit and leave to enter might in the end still have been granted cannot help the applicant".

It follows, inferentially and necessarily, that if, in the circumstances of the particular case, the information which was the true information would have resulted in enquiries having to be made by the immigration authorities in order to determine whether or not to grant leave to enter, any falsehood which avoids that consequence is a material falsehood. In other words, one test as to whether or not the falsehood is a material, as opposed to an immaterial, falsehood is the question whether or not it was the sort of falsehood which, had the truth been known, would have resulted in significant enquiries being made. It does not, as Laws J said, avail the applicant if it is possible that the consequence of those enquiries might be that he would nonetheless have been granted leave to enter in the same capacity or some other capacity to that which he was in fact granted.

That being the law, it seems to me beyond a peradventure that when this decision was taken to treat this applicant as an illegal entrant there was ample material upon which the immigration officer could properly rely to establish the fact that there had been a material falsehood such that it vitiated the original leave to enter.

If, therefore, this was a simply straightforward challenge by way of judicial review to the reasonableness or otherwise of the decision, there could be no question but that this application would fail. However, as is well known in the event of a person coming to this court to challenge a decision to treat him as an illegal entrant, the court itself has to look at the evidence to determine whether or not the Secretary of State, as respondent, has been able to put before the court sufficient information to justify the conclusion to a high standard of probability that, in fact. the applicant is indeed an illegal entrant. That follows from the case of Khawaja.

I, therefore, have to look at the material afresh. Since the decision of the immigration officer, there has been a significant development. It has become apparent that the caution which was administered to the applicant was not correctly translated by the interpreter. It is accepted by the Secretary of State that the interpreter said this to the applicant:

"What you say is the truth and nothing but the truth, and if you don't say the truth we will go to court".

It can, therefore, be seen that the fundamental fight of a person under investigation for a criminal offence to decline to answer questions was not explained to the applicant by the interpreter. There can be no criticism of the immigration officer, and none is suggested on behalf of the applicant. But it is a lamentable fact that the interpreter clearly failed to do his job properly; and I hope that appropriate steps will be taken to ensure that nothing of the sort happens again. It is of the greatest importance that all those involved in the administration of justice can rely on the accuracy of the interpretation of interpreters in this type of situation.

It is, therefore, said on behalf of the applicant that the whole interview was tainted by the failure to give caution in the proper form. It is pointed out by Mr. Kadri that if the matter had come before a criminal court, the court would undoubtedly have ruled the interview inadmissible. That would have been so irrespective of whether or not the court considered that the interview contained the truth.

However, the matter comes before me in a different jurisdiction. I have no doubt that I must take into account the fact that there has been a clear failure to provide the applicant with the proper warning, as to his rights in determining the extent to which I can place any reliance upon this interview. The fact is that the interview rings true. Ironically, it rings true partly because the caution, as administered to the applicant. told him that he had to tell the truth. I am satisfied, in those circumstances, that the answers given in the interview are sufficient justification for me to conclude, without any doubt whatsoever, that this applicant did indeed deceive the immigration officer when he was given his leave to enter in March 1994.

But Mr. Kadri says that if I treat the statement in that way, I would, in effect, be saying that, even if this applicant had been beaten in order to obtain a statement from him but that I was satisfied that what he said was true, I would be bound by the reasoning that I have given to rely on the statement, and the consequence would be injustice of an incalculable nature. I understand the force of that; and I have considered with great anxiety whether or not, in the circumstances of this case, it would be unjust for the court to place reliance on this interview. Was it, in effect, an abuse of this man's rights to an extent which would justify me in treating the answers in interview as being answers to which I should close my ears and eyes in the interests of justice? I consider that the court could do that in an appropriate case, but this is not that case. I do not consider that what happened here does go anywhere near establishing that there was a sort of abuse of power which would justify the court in treating the interview as being material upon which it should not rely in order to come to a conclusion of fact in this jurisdiction. It follows that I propose to rely upon the contents of the interview and my conclusion is as I have stated.

There remains only one other matter in relation to the interview and that is this: it is said that one of the answers in the interview was equivocal. It is said that the answer to the question, "When you came to this country how long did you think you would intend to stay in England?", which was, "Three months", could have been understood by this applicant as meaning, "When you had come here how tone, did you decide to stay in this country?", or words generally to that effect. In other words, that it was not an answer which was necessarily directly related to his state of mind at the time of entry. It seems to me that there are two answers to that particular his point. The first is that, against the background material, which is that this man was saying that he had come here to get away from those after him in Pakistan, it seems to me that the answer should be taken at face value, is consistent and has the flavour of truth such that it can be relied upon as being an answer which was intended to mean that this was his state of mind when he arrived in this country.

Even if that is not the right approach, the fact is that this man did not intend to stay simply for two weeks as a visitor in London. His intention at that time was such that any answer truthfully given to the question, "How long do you intend to stay?", must have been in terms very, very different those that he gave and similar, in essence, to the answer that he is recorded as having given in interview. It follows that I see nothing in that final point made on behalf of this applicant at all.

For the reason that I have given, this application is refused.

Application dismissed

Solicitors: Maliks, Manchester; Treasury Solicitor

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