Perera (HRN) v. Immigration Officer, London (Heathrow) Airport
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 17 July 1979 |
| Citation / Document Symbol | [1979-80] Imm AR 58 |
| Type of Decision | TH/46003/79(1562) |
| Cite as | Perera (HRN) v. Immigration Officer, London (Heathrow) Airport, [1979-80] Imm AR 58, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 17 July 1979, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6b124.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. |
PERERA (HRN) v IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/46003/79(1562)
Immigration Appeal Tribunal
[1979-80] Imm AR 58
Hearing Date: 17 July 1979
17 July 1979
Index Terms:
Leave to enter -- Refusal -- Examination by immigration officer -- "Examination (including any further examination)" of person seeking leave to enter -- Interrogation of applicant seeking entry as visitor and of applicant's sponsor -- Doubt as to whether entry clearance had been obtained by misrepresentation -- Temporary admission granted while further information sought from entry clearance officer by telex -- Telex reply received some 30 hours later -- Reply considered by immigration officer -- Applicant on return to airport by appointment not re-interviewed -- Notice of refusal of leave to enter served on applicant by immigration officer six hours after his receipt of telex reply -- Whether refusal notice "given not later than 12 hours after conclusion of his examination (including any further examination)" -- Whether word "examination" had restricted meaning of 'interrogation' or covered period of all necessary enquiries by immigration officer -- Whether applicant should be "deemed to have been given indefinite leave to enter" in circumstances of this case -- Immigration Act 1971, sch 2, paras 2, 6(1) -- HC 79, paras 12(a), 15.
Held:
On a true construction of para 6(1) of sch 2 to the Immigration Act 1971 (incorporating para 2 of the same schedule) a person's "examination (including any further examination)" by an immigration officer at a port of entry was not "concluded" until the officer had completed all the enquiries (whether by telex to an entry clearance officer or otherwise) necessary to enable him to decide whether to grant or refuse that person a limited leave to enter; the word "examination" in para 6(1) could not have the restricted meaning of 'interrogation', since such a restricted meaning might force an immigration officer to reach a decision on material that was incomplete. In the case before the Tribunal it mattered not that limited leave to enter was refused later than 12 hours after the interrogation of the applicant and her sponsor had ended, because the two days following that interrogation had been used by the immigration officer to obtain (by telex) information from the entry clearance officer who had granted the applicant an entry clearance as a visitor; that information was necessary to resolve the doubt raised in the immigration officer's mind during the interrogation as to whether the applicant had obtained her entry clearance by false representations and/or the concealment of material facts (contrary to para 12(a) of HC 79); and within 6 hours of receiving the reply of the entry clearance officer, and having considered its effect without re-interrogating the applicant, the immigration officer had served the statutory notice refusing the applicant leave to enter. On the facts set out in the determination below the Tribunal held that the appellant had properly been refused entry as a visitor under para 15 of HC 79 and that, on a true construction of para 6(1) of sch 2 to the Immigration Act [1979-80] Imm AR 58 1971, as summarised above n1, she was not to be "deemed to have been given indefinite leave to enter the United Kingdom". n1 The relevant provision in para 6(1) of sch 2 is set out in the determination at p 60, post. Decision of the Queen's Bench Divisional Court in R v Chief Immigration Officer, Manchester, ex p Insah Begum d 8.10.71 (unreported), applied.Counsel:
J. G. Mayne, solicitor, for the appellant. W. G. Patterson, Chief Immigration Officer, for the respondent PANEL: A. Hooton Esq (Vice-President), A. W. Lockwood Esq, T. Neil EsqJudgment One:
THE TRIBUNAL: The appellant, a citizen of Sri Lanka, aged 26 years, appeals against the determination of an adjudicator (Sir John Pestell) dismissing her appeal against the refusal on 24 April 1979 to grant her leave to enter the United Kingdom. Miss Perera arrived at Heathrow Airport from Tehran at 18.30 hours on 21 April 1979. She was in possession of an entry clearance, endorsed "visit", issued in Tehran n2. She was initially interviewed by an immigration officer (Mr J. M. MacIntyre) but he was not satisfied that she could properly be granted leave to enter the United Kingdom. He therefore issued her with Form IS 81 requiring her to submit to further examination. Another immigration officer (Miss A. May) then took over the case and examined the appellant's baggage, with the assistance of a customs officer. At 20.30 hours a third immigration officer (Mr R. Lindsley) took over responsibility from Miss May, but the appellant declined to answer many of his questions. It was getting late so Miss Perera was detained overnight. n2 Since leaving Sri Lanka in 1977 Miss Perera had been living with her parents in Tehran, where her father was a teacher. At 06.45 hours the next day, 22 April 1979, the appellant's brother, Dr H. A. Perera, arrived at the airport. At 10.00 hours Mr Lindsley resumed his examination of the appellant and he also interviewed Dr Perera. By the time these interviews had been concluded, he was in possession of considerable material which indicated that the appellant had obtained her clearance in Tehran by fraud. It was therefore necessary to check with Tehran but this would take some time, so at 11.00 hours he authorised her temporary admission to the United Kingdom subject to specified restrictions. An immediate telex was sent to Tehran asking for details of the appellant's application for entry clearance. The reply by telex was received at 13.50 hours on 24 April 1979. By this time a further immigration officer (Mr K. Francis) had assumed responsibility for the case. He studied the telex and considered all the material relevant to Miss Perera's application for admission to the United Kingdom. Mr Francis came to the conclusion that "false representations" had been made to the entry clearance officer and "material facts were concealed for the purpose of obtaining the clearance." He was satisfied therefore that her clearance was ineffective by [1979-80] Imm AR 58 virtue of para 12 of HC 79. He further was not satisfied that Miss Perera was genuinely seeking entry only for the limited period of the visit of six months as claimed by her, nor was he satisfied that she was a genuine student who intended to follow a course of study and to leave the United Kingdom on its completion. Mr Francis then, after consulting and obtaining the authority of the Chief Immigration Officer so to do, refused the appellant leave to enter. He served on her a written notice of the refusal. This was at 19.45 hours on the same day, 24 April 1979, almost six hours after the reply from Tehran had been received, when she returned to the airport by appointment. The adjudicator heard the evidence of the appellant and of her brother, Dr Perera. He found that the immigration officer was fully justified in refusing Miss Perera entry to the United Kingdom. After reviewing the evidence he set out his findings as follows: "I find that the immigration officer was fully justified in not being satisfied that this young lady was a genuine visitor who complied with the provisions of paragraph 15 of HC 79, in that no reasonable person on the evidence before him could be satisfied that she was genuinely seeking entry for the period of her visit of either 3 to 6 months. There is strong evidence that the appellant is not a genuine visitor for a defined period, but that her intention is to enter in the guise of a visitor, and then take up the question of study here. Her evidence is so riddled with untruths, that it is quite impossible to be satisfied that she intends to leave the United Kingdom at the end of any period of stay which might be granted to her. I find that the immigration officer was fully justified in terms of the provisions or r 12(a) of HC 79, in setting aside her entry clearance, and I find that the refusal was in accordance with the law and immigration rules applicable to the case. Her appeal is consequently dismissed." The written grounds of appeal to the Tribunal are: (1) that the appellant is a genuine visitor to the United Kingdom, and having a valid entry clearance, should be admitted; (2) that the immigration officer's decision to refuse Miss Perera leave to enter on 24 April 1979 was not in accordance with the law, Miss Perera being entitled to indefinite leave to enter the United Kingdom, by virtue of paragraph 6(1) of the Second Schedule to the Immigration Act 1971. Mr Mayne did not pursue the first ground of appeal. Indeed the evidence of the use of fraud on her part to obtain the entry clearance was overwhelming and no reasonable adjudicator could have come to any conclusion other than that to which Sir John Pestell came. Mr Mayne has based the appellant's case on the second ground of appeal, an argument which he advanced unsuccessfully to the adjudicator. The argument is based on para 6(1) of sch 2 to the Act which provides (omitting words not here relevant): "... where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be [1979-80] Imm AR 58 refused leave, the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not patrial) be deemed to have been given indefinite leave to enter the United Kingdom..." Mr Mayne contends that the examination and further examination of the appellant ceased when the immigration officer authorised her temporary admission at 11.00 hours on 22 April 1979. She was not examined on 23 April 1979 nor was she examined on 24 April 1979 when she returned to the airport. There was no examination or further examination in the twelve hours before Miss Perera was served with notice of refusal at 19.45 hours on 24 April 1979. The adjudicator summarised Mr Mayne's submission to him as follows:"He submitted that there was no evidence that on 24 April the appellant had been interviewed or questioned at all, though it was agreed that she had been refused entry on 24 April within a few hours of the immigration officer receiving from the entry clearance officer in Tehran, a telex message in answer to the immigration officer's enquiry. He submitted that the immigration officer had waited too long, and was caught by the provisions of para 6 of sch 2. He argued that 'examination' referred to in sch 2 meant the actual examination of the passenger by form of question and answer, and that the term 'examination' did not embrace the whole of the enquiry being made by the immigration official."
He found no merit in this submission and gave his reasons in the following passage of his determination: "Paragraph 2(1)(c) of Schedule 2 to the Act states as follows:'An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft... for the purpose of determining... whether,..., he should be given leave and for what period and on what conditions (if any), or should be refused leave.'
In this particular case I find that the evidence before the Immigration Officer was that the appellant had been granted an entry clearance in Tehran but there were reasonable grounds for believing that the truth had not been told to the entry clearance officer, and that the entry clearance had been obtained by the employment of false representations. If this was so, then in terms of the provisions of r 12 of HC 79, the immigration officer would be entitled to set aside the entry clearance which the appellant was in possession of. Without a message from the entry clearance officer, it was difficult for him, and indeed probably impossible, for him to come to a conclusion as to whether he was in a position to give the appellant leave, or whether he should refuse her leave. I find, therefore, that in this case the examination of the appellant included the enquiries made of the entry clearance officer, and that after receipt of the information by telex from the entry clearance officer, he had refused leave within 12 hours. The submission that 'examination of a person' ceases when the interview ceases, would make a complete nonsense of immigration control, as it would tie the hands of immigration officers to a period of 12 hours in which to complete all their enquiries arising from the interview of a passenger. This is clearly contrary to the provisions of para 2 and para 4(4) of schedule 2." [1979-80] Imm AR 58 Mr Mayne in his submissions to the Tribunal attempted to support the restricted meaning he attributes to "examination" by reference to definitions of the term and kindred expressions contained in the Oxford English Dictionary, Words & Phrases: Supplement, and the County Court Rules 1936. In particular he urged upon us to accept one of the meanings set out in the Oxford English Dictionary, namely "formal interrogation, esp. of a witness, or an accused person". The meaning to be attributed to an expression which is capable of more than one meaning must be determined by the context in which it appears. When a person presents himself at a port of entry into the United Kingdom and applies to be admitted, an immigration officer has a duty to satisfy himself that that person qualifies for admission. To this end he interviews the applicant, sometimes other persons as well. Answers he receives may need to be checked and result in the making of further enquiries. To hold that his examination of the applicant ceases with his questioning of him or her might well be unfair both to the applicant and to the immigration officer. If in the present case the immigration officer were required to reach his decision before receiving a reply from Tehran, he would be forced to make that decision on material that was not complete. The word "examination" as used in paras 2 and 6 of sch 2 cannot, in all commonsense, have the restricted meaning of 'interrogation'. In the judgment of the Tribunal it contemplates a continuous process, including all investigation necessary for the immigration officer fairly to decide whether to admit the applicant or to refuse him or her entry, and the examination continues in force whilst necessary enquiries are made. In the opinion of the Tribunal the appellant's examination by the immigration officer continued until notice of refusal was given at 19.45 hours on 24 April 1979. This opinion is, we think, in accordance with the judgment of the Divisional Court in the case of R v Chief Immigration Officer, Manchester Airport ex p Insah Begum, heard on 8 October 1971, a transcript of which was put before us by Mr Patterson. In that case the Court was concerned with the application of para 2(3) of sch 1 to the Commonwealth Immigrants Act 1962, which contained a provision that a notice of refusal should not be given to any person later than 12 hours after the conclusion of his examination (including any further examination) pursuant to para 1. In that case, as in the present appeal, more than 12 hours elapsed between the conclusion of the final interview of the applicant and the issue of the notice of refusal. Again, as in the present appeal, the interval was attributable to the time required to receive a reply to a telex -- in this case from Lahore -- regarding the authenticity of an entry certificate. The argument and the decision of the Court is set out in the following extract from the judgment of LORD WIDGERY CJ: "The argument here is that the examination under paragraph 1 which undoubtedly took place in respect of the applicant, was concluded at 21.00 hours on 14 September at the end of the third interview to which I have referred. Dr Khan points out that between that hour and 13.30 hours on the following day when refusal was in fact notified, there was an interval of more than 12 hours, indeed an interval of 16 1/2 hours, and so he says that the notice of refusal was invalid in that it was given out of time under the terms of para 2 sub-para (3). This argument depends entirely on the validity of Dr Khan's submission that the examination was concluded at 21.00 hours on the evening of 14 September. Mr Slynn's argument is that when regard is had to Mr Fuller's explanation of the [1979-80] Imm AR 58 deferment until the following day and of the desire to receive information by Telex from Lahore, the irresistible conclusion is that the examination had not been concluded on the previous evening, and for my part I find that conclusion entirely acceptable. I do not think the examination was concluded on the previous evening at 21.00 hours, anymore than it had been at the end of either of the earlier interviews. I think that the examination was still in force right up to and including the time when notice of refusal was given at 13.30 hours on the 15th September." The appeal is dismissed.DISPOSITION:
Appeal dismissed.SOLICITORS:
Nathoo & Mayne, W.2Copyright notice: Crown Copyright
