R v. Secretary of State for the Home Department, Ex parte Balwinder Kumar
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 21 December 1989 |
| Citation / Document Symbol | [1990] Imm AR 265 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Balwinder Kumar, [1990] Imm AR 265, United Kingdom: High Court (England and Wales), 21 December 1989, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b69e18.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 BALWINDER KUMAR
Queen's Bench Division
[1990] Imm AR 265
Hearing Date: 21 December 1989
21 December 1989
Index Terms:
Leave to enter -- circumstances in which there would be deemed indefinite leave -- no examination by immigration officer -- whether when there was no examination the provisions of paragraph 6 of the second schedule applied -- whether the immigration officer had a duty to examine passengers or only the discretionary power to do so. Immigration Act 1971 (unamended), sch 2 paras 2(1), 6(1), 6(4).
Illegal entrant -- burden and onus of proof in Khawaja -- whether when applicant relied on the effect of paragraph 6 of the second schedule to the 1971 Act, the burden of proof shifted from the Secretary of State to the applicant, to show that he was not an illegal entrant. Immigration Act 1971 (unamended) sch 2 para 6(1).
Held:
The applicant, a citizen of India, challenged the decision of the Secretary of State, that he was an illegal entrant. The applicant had arrived in the United Kingdom in 1980. He had come as one of the passengers in a motor vehicle driven by a Mr Raj to whom he had paid $300 for the passage. On arrival at Harwich, it was said, the passports of all the passengers were handed by Mr Raj to the immigration officer and subsequently returned by him. The applicant was not questioned by the immigration officer. Only later did the applicant discover that no stamp had been put in his passport. The Secretary of State when the circumstances became known to him some years later, decided that the applicant was an illegal entrant, and rejected the suggestion that the applicant had secured indefinite leave by operation of schedule 2 to the 1971 Act as then in force. Before the court that argument was again advanced. Relying on Thirukumar and the concession made by the Secretary of State in Rehal, it was argued that there had been an examination within the meaning of the schedule and, no leave stamp being put in the passport, the applicant secured indefinite leave to remain. No concession was made before the court in this case that a confrontation however brief between an applicant and an immigration officer necessarily was an examination under the schedule. The court also considered the question of the burden and standard of proof applicable to the circumstances of the case, it being submitted by the Secretary of State that the applicant relying on paragraph 6(1) of the second schedule it was for him to discharge the burden of proof on a balance of probabilities. Held: 1. Paragraph 2(1) of schedule 2 was permissive, not mandatory. An immigration officer had power to examine a passenger, but no duty to do so. 2. Whether or not a person was examined within the meaning of schedule 2 would depend on the facts. Whether or not the concession in Rehal was right, in this case there was no examination of the applicant. 3. Paragraph 6(1) of schedule 2 only applied where there was an examination. It followed that the applicant in this case could derive no benefit from that paragraph. 4. Looking at the facts, even if there had been an examination, the applicant had entered by deception and was an illegal entrant. 5. In reaching that conclusion the court applied the standard of proof in Khawaja laying the burden on the Secretary of State. It did not accept that when an applicant in a case of alleged illegal entry relied on the provisions of paragraph 6(1) of schedule 2, the burden of proof shifted to the applicant and had then to be discharged on a balance of probabilities.Cases referred to in the Judgment:
Khawaja v Secretary of State for the Home Department [1984] 1 AC 74: [1982] Imm AR 139. Mokuolu and anr v Secretary of State for the Home Department [1989] Imm AR 51. Secretary of State for the Home Department v Thirukumar and ors [1989] Imm AR 402. Tejpartap Singh Rehal v Secretary of State for the Home Department [1989] Imm AR 576.Counsel:
A Riza for the applicant; Miss JH Beale for the respondent PANEL: Hodgson JJudgment One:
HODGSON J: In this case the appliant seeks a judicial review of two decisions of the Secretary of State, a decision dated 11 May 1988 determining the applicant as an illegal entrant and a refusal to reconsider that decision dated 14 November 1988. Relief claimed is certiorari to quash or alternatively declaratory relief. The first decision under challenge is a notice in common form by an immigration officer to the applicant. The second is the decision of the Secretary of State on 14 November 1988 which so far as is relevant reads: "Mr Kumar was interviewed under caution about his immigration status on 11 May 1988 and stated that he had travelled to Holland in 1980 where he had contacted an agent and paid him @300 to get Mr Kumar into the United Kingdom. Accompanied by others, Mr Kumar had travelled by car to this country and on arrival the driver had produced their passports to the immigration officer, which were then handed back. Mr Kumar had been driven to Slough where his passport was returned and it was not until then that he realised it had not been endorsed. Mr Kumar has admitted under caution that he knew he required leave to enter the United Kingdom and realised that he had entered unlawfully and had since remained without permission to do so, and he is therefore an illegal entrant." The applicant's immigration status first came under consideration by the Home Secretary in February 1987. On 3 February 1987 a Mr Anisuddin, an immigration counsellor, wrote to the Secretary of State on behalf of the applicant. The first paragraph of the letter reads: "Mr Balwinder Kumar states that he left India on 30 May 1980 and arrived at Harwich via Holland. At the Immigration Control Harwich, Mr Kumar states that he was examined and allowed to enter the United Kingdom. However, due to an oversight of the Immigration Officer no stamp was placed on his passport. He has remained in the United Kingdom since that date." The writer then dealt with asylum and marriage (issues which are not before me), enclosed the passports of Mr Kumar and his wife and concluded: "I will be obliged if Mr Kumar's Immigration status is decided by the Home Office and appropriate endorsement is placed on his Passport." Following upon that letter the applicant was interviewed on 22 April 1988 and again on 11 May 1988. Records of those interviews were taken and are in the papers supplied by the respondents. At the end of each interview the applicant signed the record. At the conclusion of the second interview the formal notice to which I have referred was served upon the applicant. Leave to move for judicial review was sought and granted on 8 December last year. The two grounds which concern me are set out in paragraphs 1 and 2 of the grounds, and they read: "(i) Upon arrival in the United Kingdom the applicant was examined by an immigration officer pursuant to paragraph 2(1) of schedule 2 to the Immigration Act 1971. No notice as required by paragraph 6(1) of schedule 2 of the same Act was served within the 12-hour time limit and by operation of law the applicant was deemed to have been granted indefinite leave to remain in the United Kingdom. (ii) In consequence of (i) [above] the applicant has been lawfully settled in this country since 1980 and no question of his being an illegal entrant arises." In his affidavit, the applicant set out the facts, the relevant ones being in paragraphs 2 to 5; they read: "2. I am a national of the Republic of India. The circumstances of my entry were that in or about June of 1980 I entered the United Kingdom at Harwich having arrived at that port from Holland by ferry. I had left India by air some weeks before then. I was in a motor vehicle owned by a gentleman whom I had met in Holland and whom I knew as Raj. So far as I am aware the said Raj was a national of the Kingdom of the Netherlands. Two other gentlemen whose names I cannot recall and who also were Dutch were in the same motor car. 3. Before leaving Holland I had paid Raj $300 in United States currency. I did not pay this money in order to assist any illegal entry by myself. On arrival Raj drove his motor car off the ferry. I was in the front seat of the said vehicle and I remained visible to customs and immigration officers at all times. My passport being Indian passport Number [he gave the number] and the three passports of the other gentlemen were all kept together in a side pocket of a shoulder bag belonging to Raj. Raj went into a small office or cabin to speak to immigration officers taking with him the four passports. He then returned to the car and drove through Customs where a search was made and no difficulties were encountered. My passport was not returned to me at that stage and I did not ask for it. So far as I was concerned I had not entered the United Kingdom unlawfully. 4. On leaving Rotterdam Raj had produced four passports to the Dutch immigration officer. I saw the two confer and the immigration officer who was immediately outside the car in which all four of us were in asked Raj a question in Dutch which I did not understand. Raj pointed at me and a further question was asked by the officer. Raj replied and we were waved on our way. I enquired of Raj as to what had been said and I was told that the officer wanted to know which of us was the Indian Citizen and whether I was coming back. The replies were that I was the Indian national and to the effect that I was not coming back although of course the replies were given in Dutch and I have no understanding of that language. 5. After leaving Harwich the four of us went to Slough and after three days my passport was returned to me, without a stamp. At no time was I handed a notice by any immigration officer refusing me leave to enter the United Kingdom or requiring me to attend for further examination and I am not aware that any such notice concerning me was served on Raj or anyone else." Whilst the comparison between that account and the applicant's answers when he was interviewed revealed some discrepancies what I might call the basic facts are the same, namely, the date, the arrival by car with three Dutch passport holders and the meeting between Mr Raj and the immigration officer. The immigration officer's (Mr McArdle) relevant findings are contained in paragraphs 6 to 8 of his affidavit. They reads: "During the course of interview I questioned the applicant in particular in relation to his method of entry into the United Kingdom. The applicant told me he had entered the United Kingdom in about June 1980 having initially travelled to Belgium and then Holland. He told me that he had gone to Holland at the suggestion of a Surinamese man whom he had met in Belgium. The applicant claimed that after arriving in Belgium he told this man whom he know only as Raj that he did not wish to return to India. The applicant said that Raj then suggested that he went to Holland to claim asylum. However, on arrival in Holland some friends of Raj told the applicant that he would not be allowed to stay in Holland and suggested that he come to the United Kingdom. The applicant then gave his passport and $300 to Raj in order to get him into the United Kingdom. In interview on the 11 May 1988 the applicant admitted that he had paid this money to get into the United Kingdom because he knew that he would not qualify for entry in any other way. The applicant also admitted that it was his intention on arrival to stay here indefinitely. The applicant admitted that the was aware that he needed permission to stay in this country. The applicant told me that he travelled to the United Kingdom by car with three Surinamese nationals including Raj. The applicant did not know which port he arrived at in this country. He said that the car with its occupants passed through the immigration control and that he was sitting next to the driver of the vehicle who produced four passports to the immigration officer. The applicant said he did not know whether his passport was amongst those given to the immigration officer, neither did he recall whether any of the passports were stamped. The applicant said that the immigration officer had asked the driver some questions but he did not hear or understand the questions or answers. The car and its passengers were then allowed to proceed. The applicant claimed that his passport was returned to him later when they reached Slough. The applicant said he only became aware that he had no stamp in his passport when he wished to claim a National Insurance number. 7. At the completion of the second interview I considered the applicant's case bearing in mind all that he had told me during the course of both interviews. One of an immigration officer's functions when a passenger seeks entry at a port is to satisfy himself whether or not that passenger requires leave to enter. If the passenger requires leave to enter then the immigration officer must decide whether that leave is to be granted or to be refused. Notice of grant or refusal of leave is to be given in writing and, in accordance with usual practice and procedure, such written notice is given by way of a stamp in the passenger's passport. The passport of the applicant herein contained no stamp relating to his entry in 1980 and so, on the face of it, the applicant had no leave to enter. I formed the view that if the applicant's account that his friend had presented four passports to the immigration officer was true, then the passport so put forward on the applicant's behalf was not his own. I was satisfied that had the immigration officer on entry known of the applicant's true identity and his true circumstances and intentions at the time of his arrival the immigration officer would have been bound to refuse the applicant entry into the United Kingdom. In the circumstances, I considered that the applicant's entry into the United Kingdom had been in contravention of section 36(1)(c) of the Immigration Act 1971. 8. Alternatively, I considered that the applicant required leave to enter the United Kingdom but that he had entered without obtaining such leave. Accordingly, with the authority of Chief Immigration Officer Green I served the applicant with the Notice to an Illegal Entrant aforesaid." It would seem that Mr McArdle was prepared to accept what I have called the basic facts but was of the opinion that whatever passport was put forward by Mr Raj on behalf of the applicant was not the applicant's own. He was also clearly of the opinion that the applicant was seeking entry illegally, a conclusion which inevitably flows from the record of the two interviews. On behalf of the applicant, however, Mr Riza contends that as a result of paragraph 2(1) and paragraph 6(1) of schedule 2 of the Immigration Act 1971 the applicant is deemed to have been granted indefinite leave to remain in the United Kingdom. Schedule 2 to the Immigration Act 1971 deals with administration provisions as to control on entry, and the relevant paragraphs 2 and 6 come under the general heading of "Examination by immigration officers and medical examination" and "Notice of leave to enter or refusal of leave". Paragraph 2(1), so far as relevant, reads: "An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft . . . for the purpose of determining: (a) whether any of them is or is not a [British citizen]; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) 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." Paragraph 6(1) provides: ". . . 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 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; and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not [a British citizen]) he deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave." I should at this stage also read sub-paragraph (4) of that paragraph: "Where an entrant is a member of a party in charge of a person appearing to the immigration officer to be a responsible person, any notice to be given in relation to that entrant in accordance with this paragraph shall be duly given if delivered to the person in charge of the party." The first hurdle the applicant has to surmount is to show that he was in fact examined. On his own account he personally had no contact at all with the immigration officer and was asked no questions by him. Paragraph 2(1) is permissive in form and at first sight it seemed impossible to argue that the immigration officer in pursuance of his power under paragraph 2(1) examined the applicant at all. However, in a careful argument, Mr Riza has submitted that what took place between the immigration officer and Mr Raj constituted an examination of the applicant. He relies, first of all, on the decision of the Court of Appeal in Secretary of State for the Home Department v Thirukumar [1989] Imm AR 402, and particularly on a passage from the judgment of the Master of the Rolls at page 409. The facts were these: "The respondents were citizens of Sri Lanka, Tamils, who on arrival in the United Kingdom, had claimed political asylum. After investigation of their claims their applications were refused, and they were then refused leave to enter. Before the Divisional Court it had been argued that in the events which had happened the respondents had acquired unlimited leave or limited leave for six months, as the case might be, through the operation of paragraph 6(1) of the second schedule to the 1971 Act, unamended or as amended by the 1988 Act. It was also argued that the procedures adopted in relation to their claims for asylum were unfair." With that second matter I am not concerned. The two holdings which concern me are: "1. In considering the application of paragraph 6(1) of the second schedule to the 1971 Act, it was necessary to distinguish between the concepts of 'interview' and 'examination'. It had also to be remembered that whilst it was the Home Office that decided whether an applicant qualified for political asylum, it was an immigration officer alone who examined the passenger. 2. An examination under the Act might involve one or more interviews and could involve investigations with which the passenger was not personally involved." At page 409 the Master of the Rolls said: "I think that the confusion in this case arises from (a) failing to differentiate between the concept of 'interview' and that of 'examination' and (b) failing to appreciate that, although the Home Office is concerned to decide the status of one seeking political asylum, it remains the immigration officer and the immigration officer alone who conducts the examination of the passenger. The examination will always, or almost always, involve one or more interviews, but it can also involve investigations with which the passenger is not personally involved. The examination is concluded only when all relevant information is to hand and the time for decision has accordingly arrived. The 12/24 hour time limit is designed to provide a penalty for indecision and not for slothful examination." Relying on that authority, Mr Riza first draws the same distinction between "interview" and "examination". He submits that that case shows that there can be an examination of a person without his being interviewed at all. He also relies on a concession made by the Secretary of State in Rehal, of which case I have been provided with a transcript. It is a decision of the Court of Appeal given on 22 June 1989. The facts of that case appear in the judgment of Bingham LJ at page 2F: "The facts giving rise to the application are extremely short. On the 9 January 1987 the applicant entered the United Kingdom at East Midlands Airport. He was coming here to visit his sister and brother-in-law who live in Leicestershire, and he held a return ticket to Nairobi. When he reached immigration control, he was asked to hand his passport to the immigration officer, and did so. It was a British passport showing the applicant to be a British overseas citizen. The immigration officer looked at the passport. He asked no questions. He made no stamp upon it, and simply waved the applicant onwards. It seems clear that the immigration officer mistakenly thought, contrary to the fact, that the applicant was a full British citizen. It is important to emphasise that the applicant himself was guilty of no misrepresentation or deception of any kind whatever." Then, at page 4, the learned Lord Justice went on: "It is the cardinal submission of Mr Macdonald on the applicant's behalf that in the circumstances and on a proper construction of the Act deemed leave is to be held to have been given." The provisions of paragraph 2(1) were then set out, and the learned Lord Justice continued: "It is, therefore, plain on reading paragraph 2(1), that immigration officers are given a power to examine persons for various specific purposes identified in the paragraph. I have myself entertained some doubts as to whether, on the extremely brief and cursory exchange which took place between the applicant and the immigration officer in the present case, there was an examination within the meaning of paragraph 2(1). Mr Macdonald, however, submits that there was an examination, and Mr Pannick for the Secretary of State has unreservedly accepted that there was indeed an examination for the purposes of that paragraph. There is, therefore, no issue as to whether there was an examination within the meaning of paragraph 2(1), and I say no more about it." Before me on behalf of the respondent Secretary of State Miss Beale does not accept that that concession was one which should have been made and certainly makes no concession at all on the facts of this case. Mr Riza, basing his submissions upon those two cases points in further elaboration of his argument to paragraph 6(4). He submits that that impliedly shows that someone can be examined through another person, and he cited a number of examples where people are given leave without ever meeting or speaking to an immigration officer. In my judgment Mr Riza's argument amounts in effect to a submission that everyone entering the United Kingdom other than in a clandestine manner is examined. That argument, in my judgment, ignores the fact that the provisions of paragraph 2 are permissive, not mandatory. An immigration officer is given the power to examine but no duty to do so. If he grants leave to the party leader (in one of Mr Riza's examples) it only means that in respect of the members of the party he has decided not to exercise his right to examine. Whether or not it was right to concede that "the extremely brief and cursory exchange which took place between the applicant and the immigration officer" in Rehal amounted to "an examination", I have no doubt that in this case on the applicant's own account whatever actually happened between Mr Raj and the immigration officer the one thing that did not happen was an examination of the applicant. For that reason this application fails in limine. Paragraph 6(1) only applies where there has been an examination. Here there was no examination; therefore, the applicant cannot take advantage of the paragraph. Lest I be wrong in finding that here there was no examination I have to go to decide whether the respondent has proved to the standard laid down by the House of Lords in Khawaja [1984] 1 AC 74 that the applicant was an illegal entrant. It is not in dispute that the applicant has no leave so that, unless he has deemed leave under paragraph 6(1) he is an illegal entrant. There has been some debate between counsel as to whether by raising the paragraph 6(1) issue the burden of proof shifts so that it is for the applicant to satisfy me (on the ordinary civil standard) that paragraph 6(1) applies. I do not accept Miss Beale's submissions on this aspect of the case. In my judgment the position is analogous to a case where the partial defence of provocation is raised by a defendant charged with murder. There is an evidential burden upon the applicant, but once that has been satisifed, as it has here, then the respondent has, in my judgment, to disprove it to the Khawaja standard. Upon the basis that the immigration officer accepted what I have called the basic facts, has this been done? Accepting that there was a meeting between Mr Raj and the immigration officer, that the applicant's passport was not stamped and that he was allowed to enter, there are, it seems to me, only three possible scenarios: 1. That the immigration officer was shown the applicant's passport but concluded from looking at it that the applicant came within paragraph 2(1)(a) or (b) and therefore did not need leave. If that were the case, it is conceded that the applicant entered without leave and is an illegal entrant. (See Rehal and Mokuolo [1989] Imm AR 51). However, I consider that it is almost impossible to conceive of an immigration officer faced with an Indian passport making such a mistake, and I reject that explanation. 2. That the immigration officer intended to stamp the passport but, by mistake, failed to do so. That would be an unlikely thing to have happened, but I do not think that it is quite so implausible as Miss Beale contends. It has happened before and immigration officers are not infallible. Despite Miss Beale's submissions, if that is what did happen then the applicant would, in my judgment, be entitled to rely on paragraph 6(1). 3. That the immigration officer was not shown the applicant's passport at all. That is what Mr McArdle concluded had happened. In my judgment it is overwhelmingly the most likely explanation. It is clear from the interviews that this applicant was seeking illegal entry. That is shown by the details of his leaving India, the route he followed, the payment of $300 to Mr Raj, his accompanying three strangers to England, all of whom had Dutch passports, and indeed his own admissions. In those circumstances it is barely conceivable that Mr Raj would have brought the applicant to England relying upon the chance that the immigration officer might make a mistake. His price of $300 would require more of him than that and in my judgment he clearly gave more and deceived the immigration officer by showing him a passport other than the applicant's passport. It seems to me that that is convincingly established by all the evidence before me and the application, therefore, fails on that ground also.DISPOSITION:
Application dismissedSOLICITORS:
Hillingdon Legal Resource Centre, Hayes; Treasury SolicitorCopyright notice: Crown Copyright
