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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte ZAHIDE AWAN

CO/2315/95

29 February 1996

Queen's Bench Division: Buxton J

Illegal entrant-visa secured as visitor-assertion that visit would be for three months-change of intention before arrival in United Kingdom-whether incumbent on applicant to reveal to immigration officer her change of intention-whether deception on entry. Immigration Act 1971 s. 33(1).

The applicant for leave to move for judicial review was a citizen of Pakistan. She had secured a visitor visa in Nepal, telling the visa officer that she intended to stay in the United Kingdom for three months, to transact business and visit relatives. She returned from Nepal to Pakistan before travelling to the United Kingdom: while in Pakistan, she asserted, she became fearful for her safety; she decided she could not live in Pakistan and came to the United Kingdom intending to stay for longer than six months.

When she arrived in the United Kingdom she presented her passport to the immigration officer. She did not mention the possibility that she would wish to stay longer than six months; five months after she had been granted leave to enter as a visitor she claimed asylum. On the basis of what she then said in interview, the Secretary of State concluded she was an illegal entrant by deception.

Before the court counsel argued that when the applicant had arrived in the United Kingdom it had only been a possibility that she might seek to extend her stay: there had been no intention to deceive the immigration officer.

Held

1. The applicant was under no obligation positively to volunteer information, nor would she be an illegal entrant if by some accident, or without intending to mislead, she gave information that in its totality was incorrect.

2. However it is clear that her intentions, in coming to the United Kingdom and confirmed to the immigration officer on entry did not represent the whole of her reasons for coming to the United Kingdom.

3. It had been incumbent on her to make clear on her arrival her change of circumstances.

4. It followed that the Secretary of State was entitled to treat her as an illegal entrant.

M S Gill for the applicant

S Kovats for the respondent

Case referred to in the judgment:

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

BUXTON J: This is a renewed application for leave to move for judicial review by Mrs Zahide Awan, who complains of a decision of an immigration officer acting on behalf of the Secretary of State for the Home Department on 27 April 1995, declaring the applicant to be an illegal entrant under section 33(1) of the Immigration Act 1971.

The application was refused on paper, the judge saying that he found nothing perverse or irrational in the immigration officer's decision. It has been renewed before me with the benefit of a substantial amount of further evidence and helpful submissions from Mr. Gill, who has appeared on behalf of Mrs. Awan.

As I understand it, Mrs. Awan has in train an application for asylum in this country. That application was made in February 1993, some considerable time after she was granted admission to this country on 16 September 1992. 1 am not concerned with the asylum matter today; I am simply concerned with whether, when she arrived on 16 September 1992, she was an illegal entrant.

The ground upon which the Secretary of State found her to be such was that he took the view that Mrs. Awan, when she entered on 16 September 1992, concealed the actual reason for her coming to this country.

I have reminded myself of the guidance given to this court by the House of Lords in the case of Khawaja and of the careful consideration that has to be given to the underlying facts of any application of this sort.

When Mrs. Awan arrived on 16 September 1992 she was in possession of an entry clearance visa, valid for six months. That had been issued by the British authorities in Nepal. On it she said (amongst other things) that she intended to stay for three months. The reasons for her visit were given in response to question 17 on the form, by ticking various boxes "private" and "business". On her arrival she filled in an entry card. She stated that she was going to stay for at least six months, to visit her son who studies here; she wanted to stay at least until the New Year.

Mrs. Awan was at the time allegedly suffering difficulties in Pakistan, which have caused her to apply, in due course, for asylum in this country. As to the entry clearance form to which I have just referred, she says in an affidavit of today's date, which is before the court (at present unsworn):

"(1)This was intended to indicate, together with the accompanying letter signed by me, that I intended to carry out some activities of a business nature in the UK on that visit. However, I also intended to visit my son.

(2)The reasons for the visit are not spelled out. I was not asked anything further about those reasons. At that point I got the visa predominantly for business and personal visit, but due to the difficulties that surrounded me at the time the possibility of having to leave the country involuntarily was always in the back of my mind. It would be untrue for me to state otherwise, but whilst in Nepal I could not form any firm view on this. In fact, it was not until I arrived in Pakistan that I became aware of the full extent of my difficulties and the hazards that surrounded me. Despite this I had no clearly formed intention to leave Pakistan permanently, but I needed to see how things would develop. I do not believe that I misled the visa officer by saying that I intended to visit the UK to see my son for business reasons."

In April 1995 Mrs. Awan was interviewed under caution by the immigration authorities. She was asked a number of questions about her leaving Pakistan and her reasons for coming to this country. She was asked:

"Q. Why did you leave Pakistan?

A. Due to fear of my death or damage or torture. For the safety of my life.

Q. Was it your intention to claim asylum in the UK?

A. Before I came I didn't know anything about that. But I came here to live because I knew that I couldn't live in Pakistan.

Q. When you came here you had a visit visa. Did you tell the visa officer you had political problems in Pakistan?

A. No. I got it in Katmandu.

Q. Why didn't you tell the visa officer of your problems?

A. (After a long pause) Because I don't think you have to say specifically. I can't give a specific reason."

Q. When you came to the UK how long did you tell the Immigration Officer you would stay?

A. I think what I said was as long as I can.

Q. How long were you really intending to stay, given your political problems?

A. I have a permanent threat to my life, so I can't define that. I can never go back.

Q. So your real intention was to stay here permanently? A. At that time I wasn't sure what would happen.

Q. But you were not intending to go back in the near future? A. Naturally not.

Q. On your visa application you told the visa officer you were intending to visit for three months only, but you were actually planning to stay longer because of the threat to your life in Pakistan?

A. Yes, definitely."

Mrs. Awan added on review of the record:

"At that time I wasn't sure how long I would stay, but circumstances changed before I came to the United Kingdom."

Later on she explained that, having obtained her visa in Katmandu, she returned to Pakistan for a few days. It was then that she realised that she had to get away because of the problems that she was facing. She said:

"When I came here I knew I would have to stay here, could be permanently. "

On the basis of those exchanges and that evidence the Secretary of State concluded, as set out in a letter dated 26 May 1995, that although in possession of a visa for a visit she nonetheless stated in her interview under caution that she left Pakistan for the safety of her life and that that could be permanently. He refers also to a number of other statements in the interview in April 1995.

I entirely accept that the applicant is under no obligation positively to volunteer information. I also accept that she is not to be held to be an illegal entrant under the guidance given in Khawaja if by some accident, or without intending to mislead, she gives information that, in its totality, is incorrect.

It is argued on Mrs. Awan's behalf that when she came to this country, as she had said in her affidavit and, indeed, as might be inferred on one reading of her interview with the immigration officer, she had no intention of staying here; it was merely a possibility that only thereafter fructified into a fixed intention; therefore she did not mislead the entry clearance officer in failing to expound to him the existence of that possibility in the back of her mind; and even if he had been misled, it was not Mrs. Awan's intention so to mislead him.

I regret that on the totality of the evidence of this case I cannot accept those submissions. The relevant factors seem to me to be these. First, Mrs. Awan obtained her entry clearance visa on the strength of a representation that she was coming to this country for three months only and doing so partly for business reasons, which she verified to the officials in Katmandu, and partly to visit her son: it was an intention which she confirmed when she arrived here, as is shown by the documentary evidence and also as is properly confirmed in Mrs. Awan's affidavit. It is, however, quite clear from her answers under caution in the interview with the immigration officer that, putting it at its very lowest, those intentions were very far from representing the whole of her reasons for coming to this country. Indeed, as she revealingly said to the immigration officer, in a passage of her interview that I have just read, after she had obtained that entry clearance visa her circumstances altered to the extent that she appreciated that because of her assessment of conditions in Pakistan she had to leave that country in circumstances where, to put it at its lowest, it was far from clear that she would be able to, or wish to, return in the near future. Although she is a lady who travels internationally a good deal, it has not been demonstrated that she had any alternative country in mind to which she might go when her period of stay in this country expired.

In my judgment it was clearly incumbent on her to make that change of circumstance clear when she arrived in this country. The presentation of a passport or the presentation of an entry clearance visa, that has been formulated on a basis that no longer subsists, or no longer represents the totality of a person's intentions or possibilities, is, and is clearly held by the authorities to be, an act of deception under the guidance given in Khawaja.

It is quite clear that Mrs. Awan represented to the entry clearance authorities only part of the circumstances. Did she do that intentionally? The answer, in my judgment, must be that she did. A court, in looking at whether an act has been done intentionally, has to look at all the circumstances and what the party concerned says about them. Mrs. Awan's explanation of her failure to mention the possibility of her staying or wishing to stay longer because of political difficulties in Pakistan is that that was, in her mind, only a possibility. That, nonetheless, demonstrates that she took a conscious decision not to reveal those matters and not to include them in the totality of the evidence that she presented to the entry clearance officer. That is more than enough to demonstrate that her presentation of herself and the information about her in a misleading form to the entry clearance officer was intentional. I do not find it necessary to speculate further about the differences between intention, motive and other frames of mind. The question is whether the misleading form in which she presented herself to the entry clearance officer was a form adopted intentionally. In my judgment the evidence overwhelmingly points to the fact that it is.

In these circumstances, therefore, despite Mr. Gill's very helpful submissions, and despite the particular jurisprudence which affects this part of this court's jurisdiction, which I have sought to apply, I am not prepared to grant leave in this case. The application for leave is therefore refused.

Application dismissed

Solicitors: Khans, London WC2; Treasury Solicitor