Oliver Ipeoma Emeka Nkiti v. Immigration Officer, Gatwick

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	24 July 1989
Citation / Document Symbol	[1989] Imm AR 585
Cite as	Oliver Ipeoma Emeka Nkiti v. Immigration Officer, Gatwick, [1989] Imm AR 585, United Kingdom: Court of Appeal (England and Wales), 24 July 1989, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6712e.html [accessed 27 May 2023]
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Oliver Ipeoma Emeka Nkiti v Immigration Officer, Gatwick

Court of Appeal (Civil Division)

[1989] Imm AR 585

Hearing Date: 24 July 1989

24 July 1989

Index Terms:

Refusal of leave to enter -- whether reasonable -- appellant acquitted of possession and importation of heroin found in friend's luggage -- immigration officer subsequently refused leave to enter as conductive to the public good -- whether immigration officer acted reasonably. Immigration Act 1971 ss 4(1), 4(2), sch 2 paras 2(1), 2(3): HC 169 paras 76, 85.

Natural justice -- whether it was unfair for the appellant not to be given further opportunities to explain what had occurred -- whether he had a legitimate expectation, in the events which had happened that if acquitted he would be granted leave to enter.

The appellant had been a student in the United Kingdom. After a visit abroad he returned to Gatwick. He said he had intended to travel with a friend who had missed the flight. In the friend's luggage which he was looking after, a quantity of heroin was found. The appellant denied all knowledge of it, but was arrested and charged with the possession of and knowingly importing heroin. After two trials he was acquitted. The immigration officer however then refused him leave to enter relying on paragraphs 76 and 85 of HC 169. An application for judicial review was dismissed. On appeal, it was argued that once an applicant for leave had satisfied the requirements of the rules he should be admitted: it was for the immigration officer to prove that exclusion was conductive to the public good and in this case the immigration officer had failed to do so. His decision in the circumstances was perverse. It was also asserted that the immigration officer had acted unfairly in not giving the appellant a further opportunity to explain what had occurred: he had also had a legitimate expectation that if acquitted he would be granted leave to enter.

Held:

1. The immigration officer's decision was not Wednesbury unreasonable. Immigration officers had a wide discretion. The rules specifically stated that an applicant was not necessarily to be granted leave to enter simply because he satisfied the requirements of a particular rule.

2. The applicant's acquittal on the criminal charge did not oblige the immigration officer to conclude that the applicant was innocent. The standards of proof were different: in re Amanullah Khan approved.

3. If there were evidence that a legitimate expectation had been raised in the appellant's mind that he would be granted leave if acquitted, or if there were evidence that at the interview the appellant had been given the impression that his acquittal concluded the incident in his favour, then it would have been arguable that there had been a breach of natural justice. There was no evidence to that effect: there was no evidence that the appellant had suffered real prejudice: George v Secretary of State for the Environment followed.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Mughal [1973] 3 All ER 796.

George v Secretary of State for the Environment (1979) 38 P & CR 609. Khawaja v Secretary of State for the Home Department [1982] Imm AR 139: [1984] 1 AC 74.

Taj Mohd Swati v Secretary of State for the Home Department [1986] 1 WLR 477: [1986] Imm AR 88.

In re Amanullah Khan [1986] Imm AR 485.

R v Secretary of State for the Home Department ex parte Nkiti [1989] Imm AR 182.

Counsel:

S Kadri QC for the appellant; D Pannick for the respondent

PANEL: Slade, Balcombe, Staughton LJJ

Judgment One:

SLADE LJ: On 11 November 1988 Macpherson J dismissed an application by the appellant Mr Oliver Ipeoma Emeka Nkiti, seeking judicial review of a decision of an immigration officer at Gatwick Airport dated 18 August 1987, refusing the appellant leave to enter the United Kingdom for the purpose of continuing his studies. Mr Nkiti now appeals from this decision.

It will be convenient to begin by referring to one or two relevant statutory provisions and immigration rules. Section 4(1) of the Immigration Act 1971 provides that:

". . . the power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by Immigration Officers . . ."

Section 4(2) provides that the provisions of schedule 2 to the Act shall have effect with respect to the powers of immigration officers.

Paragraph 2(1) of schedule 2 to the Act (as amended), so far as material, provides:

"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 2(3) of schedule 2, so far as material, provides:

"A person, on being examined under this paragraph by an immigration officer or medical inspector, may be required in writing to him to submit to further examination: . . ."

Paragraph 76 of the Statement of Changes in Immigration Rules, HC 169 of 1983, so far as material, states:

"A passenger who does not qualify for admission under the foregoing provision of these rules is to be refused leave to enter. In addition, the immigration officer has power (subject to the restrictions contained in the next paragraph) to refuse leave to enter on any of the grounds set out in paragraphs 80-85 below. Except as provided for in paragraph 73, the fact that a passenger satisfies the formal requirements of the foregoing provisions of these rules is not conclusive in his favour. Leave to enter may be refused if, for example, the passenger has not observed the time limit or conditions imposed on any grant of leave to enter or remain . . ."

Paragraph 85 of HC 169 provides:

"Any passenger except the wife and child under eighteen of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conductive to the public good, where

(a) the Secretary of State has personally so directed, or

(b) from information available to the immigration officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter."

Before September 1986 Mr Nkiti had been in this country a number of times and had done some studying here. He was, so far as this court knows, a man of good character. For our purposes, the history of this matter began when he arrived at Gatwick on 29 September 1986 on a flight from Lagos, Nigeria. His evidence is that he and a friend intended to travel together, but that his friend missed the flight. On his arrival at the airport he was interviewed by an immigration officer (Mr Kluczynski). He was then served with a notice requiring him to submit to further examination pursuant to paragraph 2(3) of schedule 2 to the 1971 Act. The enquiries contemplated at that stage concerned the reasons why he had changed schools in the United Kingdom.

Later that morning he was escorted to the Customs Baggage Hall by another immigration officer, Miss White, who has described the events which then occurred in a statement which is exhibit JF1 in these proceedings.

Very briefly, the events as recounted by her included the following. Mr Nkiti reclaimed and collected two items of baggage. Miss White asked him if the baggage belonged to him and he said "Yes". She asked him if he had any goods to declare to customs, such as alcohol, cigarettes or prohibited substances. He said "No". They then approached the entrance to the Customs Green Channel where a customs officer Mr King asked Mr Nkiti certain questions and examined his luggage. Mr King discovered a plastic container in one of the items of luggage and went away temporarily to a private room to examine it. While he was away Mr Nkiti told Miss White that he had some money to give to the customs officer. She told him to go and discuss this with Mr King. Mr Nkiti removed a package from one of the items of baggage and went to see Mr King. The two of them shortly returned to the Baggage Hall, where Mr King handed to Miss White @1,000 sterling in notes, which was in due course returned to Mr Nkiti. Those are the salient features of Miss White's statement. Other evidence, however, shows that upon examination the customs officers discovered a half kilo of heroin emanating from one of the two pieces of luggage which Mr Nkiti had collected. He gave the explanation that this piece of baggage belonged to his friend. He denied his own personal involvement.

However, his explanation was not accepted. He was charged with knowingly importing a controlled drug. He was arrested and his further examination under schedule 2 was postponed pending his trial.

At his first trial, on 17 July 1987, the jury disagreed and was unable to reach a verdict. On 17 August 1987 he was tried again and on this occasion the jury acquitted him.

On 18 August 1987 his case came into the care of another immigration officer, Mr Fothergill, who examined him pursuant to paragraph 2(3) of schedule 2 to the 1971 Act. On the same day, following his examination, this immigration officer gave Mr Nkiti notice of refusal of leave to enter. This notice began with the following words:

"You have asked for leave to enter the United Kingdom for one year as a student, but on 29 September 1986 you were found to be in possession of half a kilo of heroin and in the light of this your exclusion is conductive to the public good. I therefore refuse you leave to enter the United Kingdom."

Paragraph A of this notice then specified the immigration officer's removal directions. Paragraph B drew attention to Mr Nkiti's entitlement to appeal against the refusal under section 13(1) of the 1971 Act, a right only exercisable after he had left the United Kingdom.

On 21 August 1987 Mr Nkiti was interviewed by another immigration officer, Elizabeth Dawson. She concluded that the appropriate course was to amplify the grounds of refusal of leave to enter, and did so in a letter of that date (page 66 of our bundle) which read as follows:

"Following the issue of notice . . . on 18.8.87 refusing you leave to enter, your case has been re-examined, and following reconsideration I find it necessary to expand the refusal of leave to enter in the following terms:

"You have asked for leave to enter the United Kingdom for one year as a student, but on 29.9.86 you were found to be in possession of half a kilo of heroin, and in the light of this your exclusion is conductive to the public good. Furthermore, you have admitted to working when previously in the UK without obtaining authority to take employment.

Also, I am not satisfied that without working and without recourse to public funds you can meet the cost of the course and of your own maintenance and accommodation and that of your dependants during the course, and that you are a genuine student who will leave the United Kingdom on completion of your studies."

Having obtained leave from McCowan J, Mr Nkiti issued an application for judicial review of the decision of the immigration officer dated 1 August 1987. At the hearing of the application for judicial review before Macpherson J there were in evidence two affidavits sworn on behalf of Mr Nkiti by his solicitor, Mr Karim, an affidavit sworn on behalf of the Secretary of State by Mr Forthergill and an affidavit sworn by Elizabeth Dawson. The judge also had before him an affidavit sworn by Mr Nkiti in which he set out his explanation of the handing over of the @1,000 to Miss White.

In paragraphs 4 to 10 of his affidavit Mr Fothergill referred to his interview with Mr Nkiti and described the course of this interview and also certain enquiries made by him later that day. In paragraph 11, 12 and 13 he continued as follows:

11. I also considered the circumstances surrounding the Applicant's arrival at Gatwick Airport on 29 September 1986. The Applicant had identified his baggage and had elected to proceed through the green channel of HM Customs. After the Customs Officer had taken away a quantity of palm oil for examination, the Applicant had asked my colleague Miss J White if he could give the Customs Officer a sum of money which transpired to be @1,000. He had then said that neither the money nor the palm oil belonged to him. The palm oil had been found to contain 1/2 kg of heroin. The Applicant had subsequently been acquitted of the criminal charge relating to the attempted importation of the drug, but that did not alter the fact that on 29 September 1986 he had been found to be in possession of the heroin; both his behaviour at the time and his explanation of how he had come to be in possession of the heroin led me to believe that he had knowingly attempted to bring heroin into the United Kingdom, and so it would be right to refuse him leave to enter on the ground that his exclusion was conductive to the public good, pursuant to paragraph 85 of Statement of Changes in Immigration rules HC 169."

"12. I referred the case to HM Inspector, Mr R Brown. I was aware that the Applicant had been acquitted of the criminal charge, but from my discussion with Mr Brown, and taking into account the events on the Applicant's arrival, I concluded that I was satisfied that the Applicant had knowingly been involved in an attempt to import drugs into the United Kingdom, and so the Applicant's presence would not be conductive to the public good."

"13. Accordingly, with Mr Brown's authority, the Applicant was refused leave to enter the United Kingdom on 18 August 1987. I gave the forms to the Applicant and explained their import . . ."

The learned judge considered that there was no substance in Mr Nkiti's application for judicial review. Having referred to paragraphs 11 and 12 of Mr Fothergill's affidavit, he said:

"So that it is quite apparent, unfortunately for the Applicant, that the Immigration Officer knew exactly what the defence was, namely that the heroin had been in the friend's suitcase and that he had been ignorant of its presence.

"If Mr Nkiti had wanted to say any more than that he had all the opportunity that he needed to do so when he saw the Immigration Officer and I simply do not see why the Immigration Officer had, in Mr Kadri's words, to ask a lot of questions of the Applicant in order to further his enquiries. He knew what the defence was because he had been told that. The Applicant was there, the man had been found in possession of the heroin and the Officer was entitled to reach his conclusion upon the facts which were before him. I do not believe that he had the duty, which sometimes applies, for example, in refugee cases, to pursue the matter beyond investigating the denial and looking at all the circumstances of the case as an Immigration Officer. He was not a juror, this was not a criminal trial, and Mr Nkiti's acquittal did not mean that the Immigration Officer was precluded from reaching his conclusion that the man probably knew what was in the luggage and that his presence here was not conducive to the public good.

"In any event, this was a matter, in my judgment, for the Immigration Officer himself. As Mr Pannick says, unless there is an error of law or perversity in the decision, it is not for this court to go over the facts again and say whether this court might have reached a different conclusion. Immigration Officers are intimately involved all the time with cases of this kind and must reach their conclusions on the ground in possession of all the relevant facts and making their own judgment in accordance with commonsense and the law. For what it is worth, it seems to me an impeccable decision in the sense that it was made with all relevant factors in mind and after proper investigation.

"In those circumstances, there is no material here upon which this Immigration Officer's decision that this man should leave should be reviewed. Of course, it will not be very good for him to know that he has been excluded from the country, but that is not an absolute bar to travel and it will be up to him to satisfy the authorities here, if he can, on another occasion, probably in advance, that he is a better citizen and that he is the sort of person who may be admitted.

"In those circumstances, and in the end without any hestitation, since I must look keenly to see whether there has been any injustice in this case, this application must be refused."

There are two grounds of Mr Nkiti's appeal set out in his notice of appeal:

"1. The learned judge erred in law in holding that the Immigration Officer was justified in refusing the Appellant leave enter under Paragraph 85 of the Immigration Rules HC 169. It is respectfully submitted that under the said Paragraph 85 the onus is upon the Immigration Officer to satisfy the Court that on the information available to him it was right to refuse the Appellant leave to enter.

"2. Further or in the alternative the learned judge erred in holding that the decision of the Immigration Officer was not perverse and/or irrational under all the circumstances."

In support of ground 1 Mr Kadri, on behalf of Mr Nkiti, has submitted that once an applicant for leave to enter has satisfied the immigration officer that he has fulfilled all the requirements of the immigration rules, he should be given leave to enter. If the immigration officer refuses leave to enter under paragraph 85 of the rules, it is submitted that the onus falls on him to show that the applicant's presence is not conducive to the public good; this onus, it is suggested, was not discharged in the present case.

In my judgment, this submission is not well-founded in law. Parliament, by section 4(1) of the 1971 Act, has explicitly conferred on immigration officers the power to give or refuse leave to enter the United Kingdom. Paragraphs 76 and 85 of HC 169 have laid down certain relevant rules as to the practice to be followed by an immigration officer in the exercise of this power. Paragraph 76 gives him express power to refuse leave to enter on any of the grounds set out in paragraphs 80-85. It further explicitly states that the fact that a passenger satisfies the formal requirements of the foregoing provisions of the rules is not conclusive in his favour. The discretion possessed by immigration officers is a wide one.

Mr Nkiti, of course, would have a statutory right of appeal from the immigration officer's decision under section 13(1) of the 1971 Act as soon as he left the United Kingdom. In my judgment however, the decision of this court in R v Home Secretary ex parte Swati [1986] 1 WLR 477, to which Mr Pannick referred us, shows clearly that if the decision of an immigration officer refusing leave to enter is to be successfully challenged by way of judicial review, either illegality or Wednesbury unreasonableness or procedural impropriety must be shown, (see particularly at page 482 per Sir John Donaldson MR; see also R v Home Secretary ex parte Khawaja [1984] 1 AC 74 at page 122 A-B per Lord Bridge). In my judgment Ground 1 of this appeal must therefore fail.

In support of his submission that there had been Wednesbury unreasonableness and perversity (Ground 2 of the appeal) Mr Kadri had to found his case on the submission that the immigration officer failed to give proper weight to Mr Nkiti's acquittal at the Crown Court. I do not think that there is any substance in this point.

It is plain from paragraphs 11 and 12 of his affidavit that the immigration officer, Mr Fothergill, in reaching his decision took into account, and rightly took into account, the fact that Mr Nkiti had been acquitted by a jury of the criminal charge of knowingly importing heroin. However, Mr Kadri has not felt able to submit that his acquittal of this charge obliged the immigration officer to conclude that Mr Nkiti had in fact been innocent of it. There are a variety of reasons why any such submission would be ill-founded. Among the most important is the fact that the standard of proof required for a conviction in a criminal case is proof beyond reasonable doubt, which is a far higher standard than that which an immigration officer is entitled to apply in deciding whether or not the connection with drug offences of an applicant for leave to enter renders his presence not conducive to the public good. A similar point arose in in re Amanullah Khan [1986] Imm AR 485. In that case there was under challenge a decision of the Secretary of State to initiate deportation proceedings against the applicant pursuant to section 3(5)(b) of the 1971 Act on the grounds of national security. The applicant had been charged with the possession of explosives. In two trials subsequent to the Secretary of State's decision, he was acquitted of these offences. Simon Brown J, however, held that this acquittal did not by itself show that the Secretary of State's decision was wrong. He said (at page 488):

"Before I turn to consider the argument I should clear the ground by making one thing clear. It has never been suggested that the Secretary of State did not have, at all relevant times, the material entitling him to reach a decision both to deport, and in the meantime detain, the applicant on national security grounds. Lord Gifford has, in my judgment rightly, recognised that there is no inconsistency between the Secretary of State's decision in the matter and the jury's acquittal of the applicant. It would plainly be disingenuous, not to say mischievous, to contend for any such inconsistency. One only has to reflect upon the manifestly different standards of proof applied respectively by a jury considering criminal guilt, and the Secretary of State deciding what may be required in the interests of national security. And the Secretary of State may well also have additional information not available to the jury."

Mr Forthergill's affidavit shows that he had information before him which in my judgment entitled him to take the view that despite the acquittal Mr Nkiti had knowingly been involved in an attempt to import drugs into the United Kingdom and that his presence here would not by conducive to the public good. The information to which I refer is that which is referred to in paragraph 11 and 12 of the affidavit, coupled with the contents of Miss White's statement. The question for us is not whether we would have come to the same decision as Mr Fothergill did; the question for us is whether it was irrational or perverse. I find it impossible to say that it was.

This disposes of the only two grounds raised in the notice of appeal. However, we allowed Mr Kadri to argue two additional points which were not raised in the notice of appeal. The first of them, which I shall call "the fairness point", was to the following effect. At the interview on 18 August 1987, it was suggested, Mr Fothergill never asked Mr Nkiti any questions about the heroin incident and his subsequent trials and acquittal. Accordingly, it was suggested, Mr Nkiti was never given the opportunity to deal with those matters which led the immigration officer to suspect or conclude that he had knowingly been involved in an attempt to import heroin. In Mr Kadri's submission it was unfair and procedurally improper that Mr Nkiti should not have been given this opportunity.

In support of this submission he referred us to certain dicta of members of this court in R v Home Secretary ex parte Mughal [1973] 3 All ER 796. Lord Denning MR said (at page 803 D):

"An Immigration Officer is not a judge or a judicial officer. He has not to obey set rules of procedure. He is an administrative officer. He is engaged in administering the control of immigrants into this country. It is a most responsible and delicate task. He is, of course, bound to act honestly and fairly, but, so long as he does so the courts cannot and should not interfere."

Megaw LJ (at page 805 J) referred to the duty of an immigration officer to "act fairly". Scarman LJ (at pp 880 J to 881 A) said:

"The Immigration Officer was not satisfied that he was lawfully settled in the United Kingdom, and so refused him admission. I am bound to say that I am not in the least surprised at his decision. But the applicant claims in this court, though he made no such suggestion to the Divisional Court, that the Immigration Officer failed to observe the requirements of natural justice. The Immigration Officer did not have to conduct a trial; he was an administrative officer engaged in an administrative enquiry, who at the end of it had to be satisfied before he took a certain decision. Natural justice required of him that he should give the applicant a real opportunity of satisfying him."

The second additional point argued by Mr Kadri, which I shall call "the legitimate expectation point", was closely allied to the first. The immigration officer's postponement of the further examination of Mr Nkiti pending his trial created in Mr Nkiti's mind, so it was said, a legitimate expectation that, in the event of an acquittal, the heroin incident would not be held against him by the immigration authorities. Similarly, it was said, Mr Fothergill's failure after his acquittal to ask him questions about his alleged offence created the like legitimate expectation and led him to suppose that he need say nothing about the heroin incident at his interview with Mr Fothergill.

These two additional points were argued cogently and attractively by Mr Kadri. If they had been supported by appropriate evidence, they would, I think, have given rise to at least a good arguable case on this appeal, on the grounds of breaches of natural justice. However, as Mr Pannick submitted on behalf of the immigration officer, breaches of natural justice can only be established by reference to the particular facts of a particular case. They cannot be considered in the abstract. Before finding that any such breach has occurred, the court has to be satisfied that the complaining party has suffered real prejudice: (see, for example George v Secretary of State for the Environment (1979) 38 P & CR 609, where Lord Denning MR at page 617 and Roskill LJ at page 619, used the phrase "substantial prejudice").

In the present case, as Mr Pannick has pointed out, not only do the application for judicial review and the notice of appeal omit any reference to the "fairness" of "legitimate expectation" points; none of the evidence sworn on behalf of Mr Nkiti makes any complaint at all on these lines. As to the "fairness" point there is no suggestion in the evidence that Mr Nkiti said nothing about the heroin incident at the interview with Mr Fothergill, because he thought he could safely rely on his acquittal at the second criminal trial. Except insofar as one can draw inferences from the absence of any mention in Mr Fothergill's affidavit of any conversation between him and Mr Nkiti about that incident, there is no evidence at all as to what was said or not said by either party at that interview about that incident. There is no suggestion in the evidence that at the interview Mr Nkiti was under a false apprehension that the acquittal had concluded the heroin incident or the public good issue in his favour so far as the immigration authorities were concerned; or that he kept quiet because of anything said by Mr Fothergill; or that he was lulled into a false sense of security; or that Mr Fothergill was unwilling to listen to him. In the absence of such evidence the fairness point cannot in my judgment get off the ground.

As to the legitimate expectation point, there is no evidence that any of the immigration authorities, either expressly or by implication, led Mr Nkiti to believe that if he was acquitted at his criminal trial, they themselves would be prepared to accept that he had not knowingly been involved in an attempt to import heroin. There is no evidence that Mr Fothergill, either expressly or by implication, led him to suppose that he accepted his innocence.

Mr Nkiti's evidence contains no complaint, or even suggestion, that he was misled in any way by the immigration authorities.

For these reasons the fairness and legitimate expectation points are in my judgment no better founded in law than the two points raised in the notice of appeal and it is not necessary to consider whether the letter of 21 August 1987 assists the respondent. In my judgment Macpherson J's decision was entirely correct and I would dismiss the appeal.

Judgment Two:

BALCOMBE LJ: I agree.

Judgment Three:

STAUGHTON LJ: I also agree.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Karim Laxman, London WC1; Treasury Solicitor