R v. Secretary of State for the Home Department, Ex parte Lekram Connhye and Ors
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 12 May 1987 |
| Citation / Document Symbol | [1987] Imm AR 478 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Lekram Connhye and Ors, [1987] Imm AR 478, United Kingdom: High Court (England and Wales), 12 May 1987, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b64a24.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. |
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte LEKRAM CONNHYE AND ORS
Queen's Bench Division (Divisional Court)
[1987] Imm AR 478
Hearing Date: 12 May 1987
12 May 1987
Index Terms:
Refusal of leave to enter -- transit passengers -- removed from "air side" at airport for enquiries by Customs Officers -- unable to continue their intended journeys -- whether refusal of leave to enter the United Kingdom the proper course. Immigration Act 1971 s 11.
Transit passenger -- necessity of satisfying immigration officer that he has "the means" of proceeding at once to another country -- whether "the means" is limited to financial means. HC 169 (as amended) para 9.
Held:
The appellants were citizens of Mauritius who arrived at Heathrow, intending to proceed to Brussels. While waiting in air side terminals they were required to submit to extensive enquiries by customs officers. For that purpose they were removed from the air side, where as transit passengers they had not required leave to enter. At the conclusion of the examinations, the immigration officer became aware that the airlines where no longer willing to carry the passengers on to Brussels. The immigration officer accordingly treated the passengers as persons who were deemed to have sought entry to the United Kingdom, refused them admission and endorsed their passports accordingly. On application for judicial review, it was argued that the phrase "has satisfied the immigration officer that he has . . . the means . . . of proceeding . . . to another country" meant no more than that the passenger had the financial means so to proceed. Held: 1. "The means" in paragraph 9 of HC 169 as amended, referred not only to financial means, but also physical means. It followed, on the facts, that if the airlines declined to carry them as passengers to Brussels, the applicants did not have "the means" so to proceed. 2. In the circumstances, although "this is a most unfortunate case", the immigration officer's decision could not be faulted on Wednesbury principles.Cases referred to in the Judgment:
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680. R v Secretary of State for the Home Department ex parte Malkiat Singh Raju [1986] Imm AR 348.Counsel:
S Husain for the appellants; R Ter Haar for the respondent PANEL: May LJ, Macpherson JJudgment One:
MAY LJ: This is a most unfortunate case, but our obligation is to decide the matter according to the law. Whether, having given our decision, it will be possible for those concerned to sort out the difficult situation that has occurred and to alleviate the position in which the applicants find themselves cannot be a matter for this court and must be a matter for the parties themselves. In this case, Mr Husain moves with leave on behalf of the ten applicants, all of them citizens of Mauritius, for judicial review of a decision by one of Her Majesty's immigration officers at Heathrow on 13 April 1987 refusing each of the applicants leave to enter the United Kingdom and giving directions for their removal back to Mauritius on 14 April. The facts can be briefly stated. At about nine o'clock in the morning of Sunday, 12 April this year, these ten applicants arrived by air from Mauritius at Heathrow. They were all in possessions of passports with Belgian visas. They were all in possession of what are described as "OK tickets" for onward travel from Heathrow to Brussels. They were apparently a party who were intending to have a holiday in Belgium and possibly thereafter elsewhere in Europe. Further, it may be that some of them were then intending to travel on to India or Pakistan, there to visit relatives. Having arrived at Heathrow, they were transferred on what is described as the "air side", directly to Terminal 1 -- they had arrived at Terminal 3 -- so that they could catch their onward flights to Brussels. They had been divided into three groups in order to catch the 4.00 pm, 5.00 pm and 7.00 pm flights of British Airways and Sabena Airlines on that same afternoon. In the statutory context to which I shall briefly refer in a moment, they had not at that stage been interviewed by the immigration authorities. That was unnecessary. They remained on the "air side" and were intending to move off to Brussels by their booked flights. However, at about 3.45 pm, after those who were going for the four o'clock flight had been given their boarding passes, officers of Her Majesty's Customs & Excise came into the transit lounge in Terminal 1, took all ten applicants to another part of the terminal outside the transit lounge and there until at least midnight these applicants were examined, some on three separate occasions, in circumstances and under conditions into which for the purposes of the present application it is unnecessary to go. It should be stressed that this application is for judicial review of a decision of a representative of the Home Office. There is no application before the court in respect of any action on the part of the Customs & Excise. Of course the consequence of their prolonged examination by Customs & Excise was that they missed the three flights that they were intending to take to Belgium. They were then taken back by Customs & Excise officers into the immigration lounge and back into the "air side" of Terminal 1 when they came again under the aegis of the immigration authorities. It should also be stressed that despite a prolonged and, on the evidence extremely thorough examination on behalf of the Customs & Excise authorities, including examinations by doctors, no drugs or any illicit contraband were found on, in or in the possession of any of these applicants. Having been returned to the immigration authorities' control after midnight early on 13 April, the applicants were expecting to catch a nine o'clock flight in the morning Precisely how that came about does not appear from the material before us except that the affidavit on behalf of the applicants suggests that this is what they were told. However, the affidavits of the immigration officer, Miss Leadbetter, depose to the fact that after these applicants were brought back within immigration control she made enquiries of both British Airways and Sabena and, for reasons and in circumstances into which it is again unnecessary to go, both the airlines indicated they were unwilling to carry these applicants on. There is a conflict on the evidence about the attitude of the airlines and how it had been brought about, but which of course we are in no position to resolve. In consequence the immigration officer, faced with the attitude adopted by the airlines, acting pursuant to rule 9 of the Immigration Rules, to which again I shall refer in a moment, served each of these applicants with a notice of refusal in the usual form and stamped each of their passports with an immigration stamp across which she put a red cross. That apparently is an internationally recognised indication that at the place and date indicated by the immigration stamp leave to enter was refused. The notice of refusal in each case reads in this way: "You have asked for leave to enter the United Kingdom as a passenger in transit to Belgium but I am not satisifed that you have both the means and the intention of proceeding at once to that country. I have given directions for your removal at 19.10 hours on the 14th April 1987 by aircraft BA 065 to Mauritius." It is in those circumstances and against that refusal that this application for judicial review is made. It is necessary briefly to refer to the relevant statutory provisions. I do not read section 11 of the Act to which we have referred, but merely point out that it defines when a person disembarks and must be presumed to enter the United Kingdom and also provides that so long as such a person remains in an area at a port, which of course includes Heathrow, which has been approved for the purpose by an immigration officer, he is not deemed to enter the United Kingdom. That is the purpose of the transit lounges on the "air side" at these terminals. By paragraph 2 of schedule 2 of the Immigration Act 1971 an immigration officer is given the power to examine any persons who have arrived in the United Kingdom by aircraft, including, transit passengers, to ascertain whether any of them is a British citizen; whether, if he is not, he may or may not enter the United Kingdom without leave; and whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave. Then finally, turning to the Statement of Changes in Immigration Rules, HC 169, the relevant rule is rule 9. That relates to passengers in transit. It provides: "Detailed examination of a passenger whose sole purpose is transit to a country outside the common travel area is unlikely to be required once he has satisfied the immigration officer that he has both the means and the intention of proceeding at once to another country and is assured of entry there. If the immigration officer is not so satisfied, leave to enter is to be refused. "Having regard to the circumstances of this particular application, which the court has brought on as quickly as possible, I do not propose in the course of this judgment to rehearse the two arguments, one on each side, in support of the application for judicial review or opposing it. I merely propose to indicate what I think is the legal position. Once these applicants left the transit lounge at Terminal 1, albeit at the behest of Customs & Excise, they moved out of the limbo for which section 11 of the Immigration Act provides and must be deemed to have entered the United Kingdom. When, after the examination by Customs & Excise, they were returned to the transit lounge or its vicinity -- I say, or its vicinity, because by that time, midnight, it seems that the transit lounge was closed -- and came within the control of the immigration authorities, it became necessary for the later to decide what course of action they should take. Having ascertained, as Miss Leadbetter did (and as I said we cannot resolve the conflicts on the evidence that there are), that the two airlines were not prepared to carry these applicants to Brussels, she came to the conclusion that she was not satisfied that they had the means, albeit they may have had the intention, of proceeding at once to Brussels and she accordingly issued the notice of refusal of leave to enter to which I have referred. It is true that none of these applicants had in so many words expressly asked for leave to enter the United Kingdom. In truth and in fact, they did not want to. They wanted to use the facilities of Heathrow Airport merely to travel on, on their holiday from Mauritius through to Brussels. Having once left the safety, if that is the right word to use, of the stipulated area under section 11 of the Act, they must, it is submitted on behalf of the respondent, and I think correctly submitted, have in effect sought leave to enter the United Kingdom -- although consideration could, I think, be given to the wording in which any subsequent refusals to enter, if they have to be given in these particular circumstances should be drafted. Was Miss Leadbetter justified in giving that refusal on the material that she had? Normally, of course, in cases where we are asked to consider a decision of an immigration officer, it is not open to this court to investigate the facts and circumstances upon which that immigration officer has reached his or her conclusion, but in this particular case we have all the relevant material before us and for my part I see no reason at all why we should not consider that material and express a view one way or the other whether she was justified in the conclusion to which she came. In the end the decision of the immigration officer, and of this court, depends upon the proper construction of the word "means" in rule 9 of the Immigration Rules. Mr Husain, on behalf of the applicants, submits it means means in the sense of money. Mr Ter Haar, on behalf of the Home Office, submits that it means means in the sense of physical means, such as the availability of an aircraft or a motorcar with petrol in it or whatever it may be. When one sees that the rule reads, "that he has both the means and the intention of proceeding at once" and not the "means to proceed" or some phrase such as that, I, for my part, am driven to the conclusion that Mr Ter Haar's submission is correct. In those circumstances I, for my part, cannot find myself satisfied that the immigration officer's decision in refusing leave to enter was one to which no reasonable immigration officer could have come, or that in reaching it she took into account matters which she ought not to have taken into account, or failed to take into account matters which she ought to have taken into account on the ordinary usual Wednesbury principle. In those circumstances, unfortunate though it may be, my opinion is that no valid challenge can be made to the notice of refusal of leave to enter. I do not propose to deal further with the stamp and cross entry in the applicants' passports. It may be that that necessarily goes with the notice of refusal of leave to enter. There is substantial material before the court to the effect that such an entry in a passport is detremental to the ability of a person carrying such a passport to move around the world, because it is an indication well recognised by immigration authorities everywhere. Indeed there was an earlier decision of Nolan J on 25 June 1986 in the case of R v Secretary of State for the Home Office, ex parte Raju, in which this particular detriment constituted by such an entry in a passport was considered to be well recognised and accepted. As I said, however, I do not propose to say anything further about that particular matter. It may be that it merits consideration by the persons concerned. However, for the reasons which I have given, unfortunate though this case may be, I think that the substantial relief sought, namely, that the refusal of leave to enter should be brought up and quashed must be refused. I would dismiss this application.Judgment Two:
MACPHERSON J: I agree, but I feel it is necessary to stress for my own part that we are not dealing with the rights and wrongs of the actions of the Customs & Excise in this case. There is of course no evidence from the Customs & Excise at all and to say anything about that part of this case would be premature and unfair to the Customs & Excise officers involved. The result of the customs officers' actions was, however, undoubtedly, in my judgment, as my Lord has said, that these men did enter the United Kingdom. Furthermore, when the immigration officer's ultimate decision was made, which we are asked to review, these men did not upon the evidence have the means of proceeding at once to Belgium. For a time, I believed that means meant financial means, but the grammar and meaning of rule 9, to which we have been referred, is in my judgment, now perfectly clear -- it means both the physical means and the financial means. So that if the airlines which might deliver the passengers to Belgium cannot or will not take them, the means of proceeding simply are not available. I am forced to conclude that in the absence of the means of proceeding to Brussels at once this immigration officer had the right to refuse these men leave to enter. She had that right in any event in connection with transit passengers under the provisions of paragraph 2 of schedule 2 to the Immigration Act which my Lord has read. Under that Act, if a transit passenger is examined in the descretion of the immigration officer he or she may give leave and for a period and on such conditions as she things fit or she, as in this case, should refuse leave. That is what the immigration officer did. The alternatives were to grant leave, which in her discretion she did not wish to do, or to leave these people wandering about in limbo at Heathrow Airport. That is both impractical and impossible in my judgment or would have been in the circumstances of this case. The immigration officer was, as my Lord has said, justified in making the entry on each form in the language which she did and in refusing these men leave. The stamp followed. That is an unfortunate consequence which these men have to bear. In some senses, as I indicated in argument, this is a bleak case, but when examining the realities of it I understand why the immigration officer acted as she did and accept that she acted lawfully. I too would refuse the relief asked in this case.DISPOSITION:
Application dismissedSOLICITORS:
Zaman Choudhury & Co, London, N1; Treasury SolicitorCopyright notice: Crown Copyright
