R v. Secretary of State for the Home Department, Ex parte Mahoney
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 5 February 1992 |
| Citation / Document Symbol | [1992] Imm AR 275 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Mahoney, [1992] Imm AR 275, United Kingdom: High Court (England and Wales), 5 February 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6370.html [accessed 3 June 2023] |
| 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 Mahoney
Queen's Bench Division
[1992] Imm AR 275
Hearing Date: 5 February 1992
5 February 1992
Index Terms:
Illegal entrant -- deception on entry -- applicant sought and granted leave to enter as a visitor -- always intended to study in the United Kingdom as well as visit relatives -- whether decision that the applicant was an illegal entrant was justified. Immigration Act 1971, s 33(1).
Evidence -- judicial review -- circumstances in which fresh evidence was receivable -- whether evidence posterior to the decision of the Secretary of State could be introduced to prove the precedent facts -- whether court restricted to review of evidence actually before the immigration officer.
Held:
The applicant for judicial review was a citizen of Jamaica who had sought and had been granted leave to enter the United Kingdom as a visitor. Subsequently an immigration officer concluded that she had always had the intention of studying in the United Kingdom, as well as visiting relatives. She was accordingly considered to be an illegal entrant. Exceptionally, the court heard oral evidence from the applicant. Held: 1. On the facts the Secretary of State had shown to the requisite high standard of proof, following Khawaja, that the applicant had practised material deception on entry. 2. In reaching that conclusion, and following Muse, the court was not restricted to evidence that was before the immigration officer when he reached his decision. 3. It followed that the applicant had properly been considered to be an illegal entrant, albeit the court expressed sympathy for the applicant.Cases referred to in the Judgment:
Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 129. Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250. R v Secretary of State for the Home Department ex parte Isap Asmal Muse (QBD, unreported, 7 December 1987) (The learned judge expressed surprise that ex parte Muse (7 December 1987) had not been reported. The judgement of Mann J (as he then was) in that case is appended to this report.) Adeniya Adesina v Secretary of State for the Home Department [1988] Imm AR442.
Counsel:
Miss F Webber for the applicant; I Ashford-Thom for the respondent PANEL: McCullough J Judgment By-1: McCULLOUGH JJudgment One:
McCULLOUGH J: On 23 December 1989 an immigration officer acting on behalf of the Secretary of State decided that Mrs Mahoney was an illegal entrant. Mrs Mahoney now moves the court for an order quashing that decision. She arrived in the United Kingdom on 22 December 1988. When interviewed on that date she said only that she intended to visit members of her family while here. It was the view of the immigration officer who interviewed her on 23 December 1989 that on 22 December 1988 Mrs Mahoney intended to enrol on a course of study in the United Kingdom and that she deliberately concealed this intention at that time. The immigration officer, therefore, concluded that she was an illegal entrant. It is settled law that a person who obtains leave to enter by misrepresenting facts is an illegal entrant if, had he told the truth, he would not have been granted leave to enter in the capacity in which leave was granted. It is irrelevant that, had he told the truth, he might have obtained leave to enter in some other capacity (see R v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514, and R v Secretary of State for the Home Department ex parte Adesina [1988] Imm AR 442). On such an application as this, the Secretary of State must do more than satisfy the court that the immigration officer could reasonably have reached the conclusion he, or in this case she, did on the material before her. The Secretary of State must establish on a high degree of probability that there was a deliberate and material deceptions (See R v Secretary of State for the Home Department ex parte Khawaja [1984] 1 AC 74). In considering this question, the court is not confined to material which was before the immigration officer at the time the decision was taken. The court is entitled to look at the totality of the material before it (see Khawaja per Lord Wilberforce at page 105 D to F and R v Secretary of State for the Home Department ex parte Isap Asmal Muse, unreported, 7 December 1987, CO/850/87, a decision of Mann J (as he then was). It seems surprising to me, if I may say so, that that decision has not been reported. Exceptionally, in this case, I heard oral evidence from Mrs Mahoney. This is not a course likely to prove either desirable or necessary other than in a minority of cases of this kind. The reason for doing so was as follows. On reading the papers in this case, I thought it possible that I would conclude that on the material considered by the immigration officer I too would have been satisfied that Mrs Mahoney was an illegal entrant. I also thought it possible that the material contained in her affidavit, that is Mrs Mahoney's affidavit, if taken at face value, would cause me to doubt that conclusion. But some of her assertions raised questions, the answers to which I needed before deciding what weight to give to those assertions. Without hearing her, I ran the risk of reaching a decision one way or the other which would not have been the one I reached had I heard her. To reject her assertions because of the questions they raised might have been unfair to her. To have accepted them despite the questions might have been unfair to the public interest. So, at my encouragement, counsel for the Secretary of State, albeit with evident reluctance, sought leave to cross-examine Mrs Mahoney. This was a course of which Mrs Mahoney's counsel approved. In the event, I am glad that that course was adopted. Mrs Mahoney is a citizen of Jamaica. She was born in April 1955. She lived in the United Kingdom with her father and her stepmother between 1965 and 1971. In 1971 she and her family returned to Jamaica, apart from one brother, a little older than herself. In Jamaica she completed her education, qualified as a secretary and started work. She married and had five children. The eldest is Roberta, born in July 1975. The youngest is Shantal, born in August 1983. In due course, Mrs Mahoney returned to full-time work. By 1986 she was working for the Ministry of Finance and Planning as a computer operator. It was her habit to take courses at college to improve her skills and employment prospects. Sometimes she took unpaid leave to attend such courses; sometimes she worked and went to classes in the evening. Her stepmother returned to England in 1978 and, it would appear, has been here ever since. They kept in touch with each other. Both Mrs Mahoney and her stepmother, who lived in London, hoped that Mrs Mahoney would visit her in England. Mrs Mahoney also wanted to see her brother and her aunt, both of whom lived in Derby. Derby was where she had lived between 1965 and 1971. Mrs Mahoney decided to visit England in 1988. Roberta and Shantal were to come with her. She says that Roberta was to come because her aunt wanted to meet her and that her aunt offered to pay Roberta's fare. Shantal was to come because she suffers from asthma. She was only aged five and Mrs Mahoney did not like to leave her. She says that her stepmother agreed to pay for her fare and her husband to pay for Shantal's. She says the visit was intended to be for three months; it was not worth coming all that way for a shorter period. In the event, although the money for Roberta's fare had arrived by August 1988, the money for her own had not. It was decided that Roberta would go ahead alone, she then being on her school holidays. Contemporary documents show that Roberta arrived in the United Kingdom on 3 August 1988 without a return ticket. On arrival, she said that she was to return to school in Jamaica in September. She was given leave to enter and remain as a visitor for six months. Roberta did not return to Jamaica in September. On 12 September she started at a school in Derby. Mrs Mahoney says that this was a decision reached by her aunt, with whom Roberta was staying. Mrs Mahoney herself was expected to come over to England soon, and it seemed sensible for Roberta to remain meanwhile so that in due course she could return to Jamaica with her mother. If she had not started school in England while she waited for her mother's arrival she would have missed too much schooling. Mrs Mahoney says that it was only in November 1988, or thereabouts, that she got her own ticket. She says that this was paid for in London by her stepmother and that it was collected by her, Mrs Mahoney herself, from British Ariways in Kingston, Jamaica. Her husband paid for Shantal's ticket. So it was that on 22 December 1988 Mrs Mahoney and Shantal arrived at Gatwick. Mrs Mahoney, and one presumes Shantal, had a return ticket dated 5 February 1989. Roberta's leave would have expired on 3 February 1989. On arrival, Mrs Mahoney was interviewed by a Mr Barker, an immigration officer. He has no personal recollection of that conversation. Mrs Mahoney has. Mr Barker made notes on Mrs Mahoney's landing card and these, if accurate, show that Mrs Mahoney said she wanted to come for three months to visit her aunt and her brother. She said her husband and three children were in Jamaica and that her husband had paid for her ticket. She produced a letter from the Ministry of Finance and Planning on the subject of her leave. Shantal's landing card says that her father and other siblings were in Jamaica. As Shantal was only aged five, that information must have come on to Shantal's landing card as a result of something that Mrs Mahoney had said. There is no note of Mrs Mahoney having a daughter who was staying in Derby or was visiting the United Kingdom. There is no mention in any note of her wanting to visit her stepmother. Mrs Mahoney says that she told the immigration officer about Roberta and said she was living in Derby. Mr Barker says that if he had been told of this he feels sure that he would have made a note on the landing card. I think so too, though of course there is room for mistake. I attach less importance to the notes about there being three children, or three siblings, in Jamaica. There were three other children there and one can readily imagine a conversation in which, without Mrs Mahoney saying that she only had three other children, such a note could come to have been made. Of greater concern is the omission of any reference to visiting her stepmother. It was to her stepmother's address in London that Mrs Mahoney was going from the airport. It was her stepmother who had paid for her ticket. It is a desire to see her stepmother in particular which emerges from her affidavit filed in support of this application. Yet there is no mention in the notes made by Mr Barker of her stepmother. Mrs Mahoney denies telling the immigration officer that her husband paid for her ticket, yet there is the note that he did. There is much less room for mistake here. I think it very much more likely that Mrs Mahoney did not mention her stepmother at all and that she did say that her ticket had been paid for by her husband. The position about her employment gives rise to a number of questions. In her affidavit she said this: "I had saved up two and a half years' leave. Which amounted to three months. In Jamaica I had seen an advertisement in a newspaper for a computer course in the UK. The advertisement did not say much about the course and in particular did not say how long it was. I was curious and since I am always keen to improve myself I thought I might investigate while I was in the UK and perhaps take the course. I requested and obtained a further three months' unpaid study leave from the Ministry, in order either to take that course in the UK or to take another course in Jamaica on my return from holiday. I put the advertisement in the handbag, where it remained."The advertisement is before the court, although it has not been exhibited to any affidavit. It is crumpled. The writing is extremely small and it is in consequence difficult to read. The advertisement is for the London Executive College with an address in London SW12 and a telephone number. It says that the college is an accredited independent college for higher business studies, "We are conveniently located in London SW12 and offer recognized full-time courses in the following areas: post graduate diploma in business administration . . .", and some initials follow, "Entry requirement -- first degree or equivalent. One year programme awarded by the IOFMS London. Diploma in management studies one year programme, Accounting AAT -- all levels". Then there is the entry in which Mrs Mahoney says she was particularly interested, "Computer studies, IDPM, ABAC and ACP -- all levels". Then, "management studies", (and there are some initials and references obviously to different courses or different stages of courses) and "marketing". There are some further references that I need not read. Then, in general, at the foot, is this, "Course fees from @1,195 per academic year. Living expenses not included. Courses commence in January, June and September each year. For free prospectus contact the Registrar, clearly stating your area of academic interest". It will be seen that although there is a reference to some of the courses being of one year in duration, there is no entry to that effect against the line referring to the computer study courses. But at the foot, the reference to fees is in terms only of so much per annum. In the event, jumping ahead in the history, on 3 February 1989 Mrs Mahoney enrolled at the college on a three-year course leading to the Institute of Data Processing Management qualification. Presumably that is the IDPM qualification referred to in the advertisement in relation to computer studies. It is a reasonable inference that Mrs Mahoney, who was interested in courses and qualifications, would have appreciated what those initials meant before leaving Jamaica. She says further in her affidavit: "Shantal and I arrived on 22 December 1988. I told the immigration officer that I wanted to stay for three months to see my stepmother, brother and aunts. It did not occur to me to add that I might possibly apply to extend my stay if the computer course was a good one and if I obtained a place on it. I simply did not think it important, because the whole thing was so vague. I certainly did not think that telling the immigration officer that or not telling him would make any difference to whether I was allowed to enter or not. At that time I was not intending to stay for a three-year course; the maximum I was thinking about was six months, the period for which I had leave from my employment. But I was expecting that in all probability I would leave on 5 February 1989, the date of my return ticket. In January 1989 I showed the cutting I had to my stepmother, who was very keen that I should pursue it. We checked it out and found the course was a long one, three years, but that it led to the Institute of Data Processing Management qualification which would enable me to get a much better job in Jamaica. I was not sure whether I wanted to commit myself to such a long course, which involved being away from my children in Jamaica for such a long time. I talked about it to my husband on the phone, and to my stepmother, and they both felt that the sacrifice was worth making in the long-term interests of my family. I therefore enrolled on the course on 3 February 1989. My stepmother paid the fees . . . I have kept Roberta and Shantal with me because Roberta is at an age when she needs a mother's guidance, and Shantal, as I explained earlier, is asthmatic and I like to have her with me. My husband is looking after my other three children with the help of my sister." Roberta remained in Derby until the school summer holidays of 1989. Then she joined her mother in London and transferred to a school there. Presumably extensions of leave were obtained on her behalf. The implication from the paragraphs I have read is that Mrs Mahoney had been working for the Ministry of Finance and Planning until, at the most, shortly before her departure from Jamaica. It became clear, however, during her oral evidence that this was not so. She had not done any work at the Ministry since August 1988. At first she said in evidence that she started on a course in Jamaica in June 1988 and completed one part of it and intended to go on to a further level in Jamaica after her holiday. But before leaving Jamaica she had not even enquired when that further course was due to start. Then she said that she had started on a part-time course in March 1988, that is while she was still working, and that she had been on leave from August until December 1988. The part-time course she said ended in September. She had sat examinations in October but had not heard the result before leaving for the United Kingdom in December. Indeed, although she believed she would have passed, she said she still did not know whether she had or not. Between the end of the examinations in October and leaving for England just before Christmas she had just been on leave. She had not been taking any course. She says that the Ministry had given her six months' study leave. What I find strange, to say the least, is not so much that her employer would have been prepared to give her leave of this length, particularly when one remembers that it was unpaid leave, but that she should waste so much of it by doing nothing. I have received no satisfactory explanation of why she did not return to work after her examinations in October. The court has seen a document dated 28 June 1988 which says that Mrs Mahoney is eligible for 56 days' vacation leave on full salary with effect from 15 September 1988. That would take her up to about 10 November. That is still six weeks short of her departure to the United Kingdom. She says that the letter in question was obtained with a view to applying to the British High Commission in Jamaica for entry clearance to the United Kingdom but that in the event she discovered that entry clearance was not required. She says that her employers gave her a further three months study leave after this letter was written. Such a further three months would take her up to about 10 February, just after the date of her return ticket. But why waste the weeks between October and December? Why not get an up-to-date letter from her employers before departing for the United Kingdom? Why bring this letter to England so obviously out of date? It was of course produced to the immigration officer. I seriously doubt whether Mrs Mahoney was, as she claims, still employed by the Ministry by the time of her departure for England. What the truth is about her employment in Jamaica and her entitlement to leave, I do not know. But I am satisfied to a high degree of probability that I have not been told the truth. On 22 March 1989 Mrs Mahoney, having enrolled on the three-year course, applied for leave to remain in the United Kingdom as a student. For this purpose, she called at the Immigration and Nationality Department in Croydon. She said there that she had seen an advertisement in Jamaica about the college and that she did not declare this to the immigration officer on arrival in the United Kingdom. She had wanted to see the college and its prospectus before enrolling. In connection with this application, she was interviewed on 23 December 1989 by Miss or Mrs Tanner, an immigration officer who made contemporary notes. Every answer but one was initialled by Mrs Mahoney. Mrs Mahoney said to me in evidence that the notes did not properly record what she said. She went so far as to suggest at one stage that the answers were being compiled or composed by Mrs Tanner. I do not accept that. I find the criticisms that she made of Mrs Tanner inconsistent with her assertion in her affidavit that Mrs Tanner was very pleasant. I do not believe that Mrs Mahoney would have initialled answers with which she was not satisfied. There is one answer which is not initialled and for the sake of fairness I ignore it. But reading the rest of the interview, and rereading it, satisfies me on a high degree of probability that Mrs Mahoney was saying that when she arrived in England she had two purposes. One was to visit her relations; the other was to visit the college and apply for enrolment if one of the courses met her requirements. They also satisfy me on a high degree of probability that she thought that she would not be admitted to the United Kingdom to study without an acceptance letter; she had not got an acceptance letter. So I believe she decided to say nothing about her intentions with respect to the college. If asked directly, I have no doubt that she would have felt it necessary to disclose her intentions. But short of that, I believe she decided to keep quiet. I readily accept that she intended to return to Jamaica within her period of visitor's leave if she had not found a suitable course and that her intention to remain here and study was qualified to that extent. But I have no doubt that she did have these two purposes. There are the following factors. Her answers at interview on 23 December 1989; the unsatisfactory features of her evidence about her employment in Jamaica; her failure to mention her intention to spend much, if not most of her time, in London with her stepmother and her concealment by a positive falsehood of the fact that it was her stepmother who had paid for her ticket. London, of course, is where the college was. I think it very likely that she did not, as she claims, mention Roberta's existence. I draw from that the inference that she realised that questions about Roberta might have followed. They might have led to it being discovered that she had entered school in Derby, and that might have alerted the immigration officer to an intention on the part of Mrs Mahoney to stay in England for longer than she had declared. Then there is the fact that she was talking of an intended visit of three months on arrival and yet thinking, on her own admission, of a course lasting up to six months. She had, as I have said, two purposes in mind in this visit. I am satisfied that the intention to join a course of study, the duration of which would in all probability carry her beyond her declared time of return, had sufficiently hardened for her to know that when asked, as she must have been, why she had come to the United Kingdom she should have declared it. I am therefore satisfied on a high degree of probability that she practised a material deception on the immigration officer who interviewed her on 22 December 1988 and that she is therefore an illegal entrant. This is a conclusion which I reach with regret. Mrs Mahoney is not one of those people who pretend to be coming to England for a purpose which was a sham. When she said that she was coming to see her relations she was telling the truth, albeit only part of the truth. Nor is she one of those who embark on a course of study as a cover of entering and remaining in this country. Mrs Mahoney genuinely wanted to improve her skills and get a further qualification. There is no reason to believe that she has not attended to her studies with diligence. There is no reason to believe that she intended to come to this country to stay permanently. I am quite satisfied that it has always been her intention to return to Jamaica on the completion of her course. If she had not failed an examination fairly recently, I believe she would have completed those three years already. As it is, she only needs a few more months. But the application must be dismissed.DISPOSITION:
Application dismissedSOLICITORS:
David James & Co, London, SW1; Treasury SolicitorCopyright notice: Crown Copyright
