Liberto v. Immigration Officer, London (Heathrow) Airport

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	16 September 1974
Citation / Document Symbol	[1975] Imm AR 61
Type of Decision	TH/3798/73(345)
Cite as	Liberto v. Immigration Officer, London (Heathrow) Airport, [1975] Imm AR 61, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 16 September 1974, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b66f50.html [accessed 4 November 2019]
Disclaimer	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.

LIBERTO v THE IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/3798/73(345)

Immigration Appeal Tribunal

[1975] Imm AR 61

Hearing Date: 16 September 1974

16 September 1974

Index Terms:

Criminal record -- Refusal of admission -- Discretion -- United States citizen convicted of extradition crime -- Admission sought in order to continue prosecuting an action in the High Court -- Whether words in immigration rule "should be refused leave to enter" mandatory in absence of "strong compassionate reasons" justifying admission -- Whether civil proceedings amounted to "strong compassionate reasons" -- Immigration Rules, HC 81, para 63.

Discretion -- Immigration Officer -- Criminal record of person seeking admission -- Conviction of extradition crime -- "should be refused leave to enter" -- Whether words in immigration rule mandatory unless immigration officer considers admission justified for "strong compassionate reasons" -- Whether "should" means "must" -- Immigration Rules for Control on Entry, HC 81, para 63.

Held:

The appellant citizen of the United States sought leave to enter the United Kingdom. He was refused admission by an immigration officer acting under para 63 of the Immigration Rules HC 81, which provides that (with certain exceptions not here relevant) a passenger who has been convicted in any country of an extradition crime (listed in the Extradition Act 1870 as amended) "should be refused leave to enter unless the immigration officer considers admission to be justified for strong compassionate reasons". The appellant had confirmed his convictions of certain extraditable offences, but the immigration officer did not consider that the stated purpose of the proposed visit for an undetermined period, namely to continue prosecuting an action in the High Court for the recovery of two automobiles, amounted to "strong compassionate reasons" justifying admission.

On appeal to the Tribunal from the dismissal of his appeal to an adjudicator it was submitted for the appellant that it would be wrong to construe the words "should be refused" in para 63 of HC 81 as meaning "must be refused", for in other paragraphs in Part VIII of the same Rules stronger and admittedly mandatory words were used, namely "is to be refused"; if the draftsman who had chosen the word 'should' had intended to mean 'must' he would have said so; the adjudicator had therefore been wrong in holding that the immigration officer had no discretion to admit the appellant in the absence of "strong compassionate reasons". It was further submitted for the appellant that the civil proceedings which he had commenced in this country did amount to "strong compassionate reasons" justifying his admission, inter alia because taking evidence on commission abroad was costly and because it was important for an assessment of a witness's reliability that he should appear before a judge.

Held: the appeal would be dismissed because: --

(i) the words "should be refused" in para 63 of HC 81 were mandatory, n1 so that a person with a criminal record as described in the paragraph must be refused leave to enter in the absence of "strong compassionate reasons" justifying admission;

n1 The full text of para 63 of HC 81 is set out below.

(ii) while it would certainly be more convenient for the appellant and his legal advisers if he could attend the court proceedings in this country, the matters urged on his behalf did not nearly approach the "strong compassionate reasons" envisaged in para 63 of HC 81. n1

n1 The full text of para 63 of HC 81 is set out below

Per Curiam: We have no doubt that, whether the words used in the rules in Part VIII of HC 81 are "is to be refused" or "should refuse", the legislature intended those rules to be mandatory and not directory, and we do not find any gradations as suggested (see p 63, post).

Counsel:

W. T. Wells, Q.C. and T. W. J. Docking for the appellant.

G. Boiling for the respondent.

PANEL: P. N. Dalton Esq (Vice-President) R. S. Charnley Esq, E. A. Lewis Esq.

Judgment One:

THE TRIBUNAL: The appellant in this appeal Vincent John Liberto is a citizen of the United States born on 30 March 1938. He arrived at London Airport on 30 September 1973.

When the appellant was interviewed he said that he was coming to this country for an undetermined period, as he was here to attend civil proceedings against a Mr Randolph Field concerning the possession of two American automobiles which he claimed were his. The appellant had in his possession 11,000 Canadian dollars. The immigration officer had recognised the appellant and on consulting official documents found that Mr Liberto had been convicted in the United States at different times of the offences of rape, larceny and forgery, and in England of the offence of criminal deception. Para 4 of the Home Office explanatory statement reads as follows: --

"Paragraph 63 of HC 81 states: --

'A passenger, other than the wife or child under 18 of a person settled in the United Kingdom, who has been convicted in any country, including the United Kingdom, of an offence included in the list of extradition crimes contained in the First Schedule to the Extradition Act 1870 (as amended by subsequent enactments) should be refused leave to enter unless the Immigration Officer considers admission to be justified for strong compassionate reasons.'

Therefore, as the passenger had confirmed to me that he had been convicted of the offences of rape, larceny and forgery, which are included in the list of extradition crimes contained in the First Schedule to the Extradition Act 1870

and, as the passenger was not the wife or child under 18 of a person settled in the United Kingdom and as I did not consider admission to be justified for strong compassionate reasons, I refused him leave to enter, with the authority of HM Chief Immigration Officer, Mr. H. A. Campbell, under s 3(1)(a) of the Immigration Act 1971 and in accordance with para 63 of HC 81."

The appellant appealed to an adjudicator, and was represented by counsel; Mr. B. Hunter was the Home Office presenting officer. After hearing the submissions and arguments put before him Mr McCall dismissed the appeal. The adjudicator said that there was no doubt that para 63 of HC 81 applied to the appellant and went on to say that the evidence given before him did not satisfy him that there were any "strong compassionate reasons" why the appellant should be admitted to the United Kingdom. The adjudicator granted leave to appeal to the Tribunal.

The grounds of appeal are: --

"1. The learned adjudicator wrongly held that the immigration officer had no discretion to grant the appellant leave to enter, once the immigration officer was satisfied that the appellant had been convicted of an offence included in the list of extradition crimes contained in the First Schedule to the Extradition Act 1870 (as amended by subsequent enactments) and in the absence of strong compassionate reasons.

2. If the appellant's contention is correct, and the immigration officer does have a discretion to grant entry, notwithstanding the fact that the appellant had been convicted of an offence included in the list of extradition crimes contained in the First Schedule to the said Act as amended, and notwithstanding the absence of strong compassionate reasons, then, in all the circumstances of the present case, that discretion should have been exercised in favour of granting the appellant leave to enter.

3. The learned adjudicator was wrong in holding that the fact that the appellant was, inter alia, seeking entry in order to continue prosecuting an action in the High Court of Justice, Queen's Bench Division, which action had been commenced in August 1973, could not amount to strong compassionate reasons, justifying the appellant's admission for a limited time."

Arguing the first ground of appeal, Mr Wells referred to the wording of the rules in Part VIII of HC 81. In some of the rules it is provided that a person "is to be refused leave to enter" and in others it is provided that an immigration officer "should refuse leave to enter". Mr Wells said that "is to be refused leave to enter" is clearly mandatory, but it would be wrong to construe "should" as meaning "must"; if the draftsman who had carefully chosen the word "should" had intended it to mean "must" he would have said so. Mr Boiling for his part submitted that for the purposes of the rules the immigration officer only had discretion when the rules say that he "may" do something but that he has no discretion when a rule states that something "should" be done.

In the case of B v B ([1961] 2 All E.R. 396) SCARMAN, J. (as he then was) held that the statutory requirement that a court should consider the arrangements for the care and upbringing of the children of a marriage before making a decree of divorce absolute was mandatory, so that a decree made without complying with this requirement was a nullity. In looking at the rules referred to by Mr Wells we have no doubt that the legislature intended, whether the words used are "is to be refused" or "should refuse" that the rules should be mandatory and not directory, and we do not find any gradations as suggested by Mr Wells. It follows that we conclude that under para 63 of HC 81 a person with a criminal record as described in the paragraph must be refused leave to enter unless the immigration officer considers "admission to be justified for strong compassionate reasons". The compassionate circumstances that were urged before us were that the appellant had commenced civil proceedings in this country; that the cost of taking evidence on commission abroad was a costly matter, though the appellant is not poor; and furthermore that it was most important that a witness should appear before a judge and enable an impression to be formed as to whether he was a reliable or unreliable witness. It would certainly be more convenient for the appellant and his legal advisers if he could attend the court proceedings in this country but we do not consider that the matters urged by Mr. Wells on his behalf nearly approach the "strong compassionate reasons" envisaged in para 63 of HC 81.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Harold Kenwright & Cox.