Claveria v. Immigration Officer, London (Heathrow) Airport
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 15 September 1978 |
| Citation / Document Symbol | [1978] Imm AR 176 |
| Type of Decision | TH/28121/78(1312) |
| Cite as | Claveria v. Immigration Officer, London (Heathrow) Airport, [1978] Imm AR 176, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 15 September 1978, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b62dc.html [accessed 27 May 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. |
CLAVERIA v IMMIGRATION OFFICER, LONDON (HEATHROW) AIRPORT, TH/28121/78(1312)
Immigration Appeal Tribunal
[1978] Imm AR 176
Hearing Date: 15 September 1978
15 September 1978
Index Terms:
Entry clearance -- Concealmant of "material facts" -- Visa obtained by husband "to join wife" by concealing from visa officer that wife was illegal entrant to the United Kingdom -- Leave to enter properly refused at port -- HC 240, para 42 -- HC 81, para 10(a) -- Immigration Act 1971, s 33(1).
Entry clearance -- False representations -- Visa obtained by husband falsely representing that his wife was lawfully settled in the United Kingdom -- Wife found to be an illegal entrant by reason of her original entry on a work permit (and duly issued visa) obtained by deception -- Husband properly refused entry at port -- HC 240, para 42 -- HC 81, paras 10(a), 23, 24 -- Immigration Act 1971, s 33(1).
Illegal entrant -- Work permit obtained in 1973 by deception -- False representation by single woman that she had no children -- Material fact because work permits for domestic work not then issued to mothers of children -- Entry on visa issued on strength of work permit -- Revocation of conditions of entry on application in 1977 -- Illegal entrant ab initio and continuing -- Woman's husband (marriage in the Philippines in 1975) not entitled to join her in the United Kingdom -- HC 81, paras 10(a), 23, 24, 33, 42, (as amended by HC 240) -- Immigration Act 1971, s 33(1).
Work permit -- Concealment of material facts -- Single woman obtaining domestic work permit in 1973 by concealing fact that she was the mother of children -- Work permits for resident domestic work not at that time issued to women with children -- Leave to enter United Kingdom (on duly issued visa) vitiated by this deception -- Woman an illegal entrant notwithstanding the revocation in 1977 of her conditions of entry -- HC 81, paras 23, 24, 33 -- Immigration Act 1971, s 33(1).
Held:
The appellant citizen of the Philippines, holding a valid visa endorsed "to join wife", was refused leave to enter the United Kingdom in April 1978 on the ground that his wife (whom he had married in 1975) was an "illegal entrant". His wife when a single woman in 1973 had obtained a work permit for resident domestic work by falsely representing that she had no children, whereas she had three, and at that time mothers of children were not granted such work permits; she entered the United Kingdom on the visa issued to her as the holder of that work permit. In 1975 while on holiday in the Philippines she married the appellant. In 1977 on her application her conditions of entry were revoked n1. n1 See footnote 5, post. On the appellant's appeal to the Tribunal from the decision of an adjudicator confirming the immigration officer's refusal to leave to enter, Held: The appellant husband had properly been refused leave to enter for the following reasons: (i) His wife was an illegal entrant ab initio under s 33(1) of the Immigration Act 1971 n2 when she was given leave to enter in 1973 on the visa which was issued to her as the holder of a resident domestic's work permit, for that work permit had been granted to her as a result of the false representation that she had no children n3 and she had repeated this misrepresentation when applying for the necessary visa n4; n2 The relevant words in s 33(1) defining an "illegal entrant" are set out on p 179, post. n3 Paragraph 24 of HC 81 provides (so far as here material) as follows: "The holder of a current work permit should normally be admitted for the period specified in the permit... The Immigration Officer should, however, refuse leave to enter if his examination reveals good reason for doing so; for example, where false representations have been employed or material facts have been concealed, whether or not to the holder's knowledge, for the purpose of obtaining the permit...". n4 "Entry clearance", as defined in para 33(1), does not include a work permit; and under para 23 of HC 81 the possession of a work permit "issued by the Department of Employment in respect of a specific post with a specific employer... does not absolve the holder from complying with visa requirements". (ii) notwithstanding the subsequent removal in 1977 of her conditions of entry the appellant's wife was still an illegal entrant as defined by s 33(1) of the 1971 Act n2; and furthermore the authority to remain indefinitely which was granted on her application in 1977 was vitiated by her original false representation to gain entry, for had it not been for that original misrepresentation she would have been unable to apply for settlement under para 26 of HC 82 n5. n5 Paragraph 26 of HC 82 provides, so far as here material, as follows: "When a person admitted in the first instance for a limited period has remained here for 4 years in approved employment or as a businessman or a self-employed person or a person of independent means, the time limit on his stay may be removed. Applications for removal of the time limit are to be considered in the light of all the relevant circumstances, including those set out in paragraph 4. If the time limit is removed no further permission from the Home Office or the Department of Employment is needed to engage in any kind of business or employment". (iii) the appellant when obtaining a visa had concealed the fact that his wife was an illegal entrant and/or had falsely represented that she was lawfully settled in the United Kingdom, contrary to para 10(a) of HC 81 n6. n6 Under para 10(a) of HC 81, "A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the Immigration Officer is satisfied that: (a) false representations were employed or material facts were concealed, whether or not to the holder's knowledge, for the purpose of obtaining the clearance".Counsel:
A. Riza, of the Joint Council for the Welfare of Immigrants, for the appellant. C. Manchip for the respondent. PANEL: D. L. Neve Esq (President), Mrs J. M. Abrahams, Miss P. G. LivermanJudgment One:
THE TRIBUNAL: The appellant Mr Flaviano Claveria is a citizen of the Philippines. On 15 April last he arrived at Heathrow Airport from Amsterdam. He sought to be admitted to this country to join his wife (under para 42 of HC 81, as amended by HC 240), and he had a valid visa endorsed "to join wife" issued in Manila. After investigation, on 20 April, he was refused leave to enter on the ground that his wife was an illegal entrant. He appealed to an adjudicator against the refusal. His appeal was heard by Sir John Pestell and dismissed on 5 May. The adjudicator gave leave to appeal to the Tribunal. We heard this appeal on 22 May and 24 August. The adjudicator had before him the immigration officer's explanatory statement, copies of the various immigration officers' manuscript notes relating to the case, telex messages exchanged between Heathrow and Manila, an application for a work permit for the appellant's wife, and a form of marriage certificate relating to the appellant and his wife. He also heard evidence from the appellant and his wife. The appeal before him turned upon the question whether or not the appellant's wife was an illegal entrant. n7 n7 See for definition of 'illegal entrant' s 33(1) of the Immigration Act 1971 (p 179, post). Upon the evidence as a whole the adjudicator found the following facts, which in our opinion were supported by the evidence, and which have not been seriously challenged by Mr Riza. The appellant's wife had obtained a work permit, dated 18 May 1973, which enabled her to come to this country for domestic employment. She obtained the work permit by falsely representing that she had no children, whereas she was the mother of three. Work permits for resident domestic employment were not issued in 1973 to women with children, n8 and the appellant admitted to an immigration officer that she had obtained the work permit by concealing the existence of her children. n8 Paragraph 33 of HC 81 adverts to this fact (in the last sentence) as follows: "work permits for resident domestic employment are not issued to people known to have children". She was admitted to this country on 6 July 1973. She returned to the Philippines on 14 December 1975 and married the appellant (who was already the father of her children) on 27 December 1975. She returned to this country and was re-admitted, on the same conditions to which she had been previously subject, on 4 June 1976. On 11 November 1977, upon application, the conditions were revoked. n9 n9 Presumably this was under para 26 of HC 82, under which the time limit on a person's stay may be removed if he was admitted in the first instance for a limited period and has remained here in approved employment for 4 years. In addition to the above facts found by the adjudicator, we have received additional evidence, admitted under r 18(2) of the Immigration Appeals (Procedure) Rules 1972, on behalf of both the appellant and respondent. On 17 April 1978 the appellant's wife had told an immigration officer the names and dates of birth of her three children. She later denied that they were her children and then (and before the adjudicator) maintained that they were the children of her cousin Lamberto and his wife Sophia Castillo. The new evidence produced to us is a letter to the effect that the three children of these two persons bear different names and different dates of birth from those originally said by he appellant's wife to relate to her own children. This evidence really carries matters no further, but serves to indicate that the adjudicator's findings of fact were correct. Other evidence now produced by the repondent is a written statement by a Mrs Leila Warren of 5 Whitchurch Gardens, Edgware, Middlesex. This is the name and address given on the application for a work permit in 1973 which enabled the appellant's wife to come to this country. Mrs Warren's statement declares that she has never applied to employ anyone from the Philippines, and that the signature on the application form is not hers. Her statement is signed and the signatures on the two documents are entirely different. The appellant's wife in evidence before us says that her work permit was obtained for her by an agent. She was asked if she had any children and she said "no". She did not speak English well at that time and the necessary form was filled up for her by the agent; she merely signed it. She saw Mrs Warren's name on the work permit. She maintains that she has no children (but we do not believe this any more than did the adjudicator). When she arrived at Heathrow she was met by somebody from the agency who took her to work for a Mrs Cohen. She never asked why she was not taken to Mrs Warren. She worked for Mrs Cohen for 11 months, after which she worked for the Westminster Hospital. Mr Manchip, in producing the evidence relating to the work permit application informed us that he was not seeking to allege that the appellant's wife was a party to the forgery of the application, of which she might well have been completely unaware, but he was producing it in order to show that the appellant's wife's permission to enter this country was obtained by deception. Paragraph 10(a) of HC 81 requires refusal of leave to enter where the entry clearance has been obtained by the employment of false representations, "whether or not to the holder's knowledge": and it was in any event still his case that the appellant's wife had falsely represented that she had no children. n10 n10 Refusal of leave to enter would also have been justified under para 24 of HC 81; see footnote 3, ante. Upon this evidence we have to decide whether the adjudicator's finding that she was an illegal entrant was correct. Section 33(1) of the Immigration Act 1971 provides (omitting the words which do not apply) that:"'Illegal Entrant' means a person unlawfully entering or seeking to enter in breach of... the immigration laws, and includes also a person who has so entered."
This definition has received judicial attention in a number of cases: in chronological order the most important appear to be as follows: Maqbool Hussain -- Divisional Court -- 4 May 1976 n11 n11 Re Maqbool Hussain (application for a Writ of Habeas Corpus) 4 May 1976, DC, (unreported). R v Malkiat Singh Bangoo and others -- Court of Appeal -- 26 July 1976 n12 n12 R v Malkiat Singh Bangoo, 26 July 1976, CA (Crim Div), "The Times" 28.7.76. Ijaz Begum Khan v Secretary of State -- Court of Appeal -- 20 May 1977 n13 n13 Khan, Ijaz Begum v Secretary of State for the Home Department, CA, [1977] 3 All E.R. 538. Safder Hussain -- Court of Appeal -- 26 May 1977 n14 n14 R v Secretary of State for the Home Department, ex p Safder Hussain, CA, [1978] 2 All E.R. 423; [1978] 1 WLR 701, DC & CA. Satwant Kaur -- Divisional Court -- 13 October 1977 n15 n15 Re Satwant Kaur (application for a Writ of Haebeas Corpus) 13 October 1977, DC, (unreported). R v Secretary of State, ex p Iftikhar Ali Choudhary -- Court of Appeal -- 23 May 1978 n16 n16 R v Secretary of State for the Home Department, ex p Iftikhar Ali Choudhary, [1978] 3 All ER 790; [1978] 1 WLR 1177, CA. R v Secretary of State, ex p Tirath Ram -- Divisional Court -- 27 July 1978 n17 n17 R v Secretary of State for the Home Department, ex p Tirath Ram, [1979] 1 All ER 687. The first four of these cases referred to persons who had obtained entry to this country by the production of passports which did not relate to them; and in each case it was held that the leave given them to enter this country was vitiated by the misrepresentation which had been employed; and in the Ijaz Begum Khan case n13 it was held that this was so even if the misrepresentation was made without the passenger's knowledge. n13 Khan, Ijaz Begum v Secretary of State for the Home Department, CA, [1977] 3 All E.R. 538. In the case of Satwant Kaur n15 there was no question of identity, but the appellant was a married woman who obtained admission by falsely pretending that she was single. The Lord Chief Justice remarked: n15 Re Satwant Kaur (application for a Writ of Haebeas Corpus) 13 October 1977, DC, (unreported)."If she was already married in 1975, the fact of her not disclosing it and of her pretending that she was a single girl would have meant that she obtained leave to enter by deception. It is well settled law now that if an entrant obtains an apparent consent to enter and does so by deception, the deception vitiates the consent, and the situation is as though the consent had not been given."
In the Choudhary case n16 the judgments in the case of Safder Hussain n14 were approved and followed. n14 R v Secretary of State for the Home Department, ex p Safder Hussain, CA, [1978] 2 All E.R. 423; [1978] 1 WLR 701, DC & CA. n16 R v Secretary of State for the Home Department, ex p Iftikhar Ali Choudhary, [1978] 3 All ER 790; [1978] 1 WLR 1177, CA. In the last case, that of Tirath Ram n17, the entrant had gained admission by the mistake of the immigration officer and there was no evidence of fraud or deception. In those circumstances, May J., giving the leading judgment, held that the contention that an immigration officer had no authority to give leave of entry where there was a mistake, but no fraud, went too far, and his Lordship was not prepared to accept it. n17 R v Secretary of State for the Home Department, ex p Tirath Ram, [1979] 1 All ER 687. Applying those authorities to the present case, we are satisfied that deception was employed by the appellant's wife to obtain her work permit. This work permit enabled her to obtain a visa, issued upon the strength of it, which visa in turn enabled her to obtain admission upon her arrival in this country. Thus the only distinction of any note which we can find between this case and those cited is that the appellant's wife's deception was one step further removed from her actual admission, in that it was employed to obtain a work permit as opposed to a visa or a passport. And in any event the appellant's wife in evidence to us said that she repeated to the visa officer that she had no children -- so that there was also misrepresentation in obtaining the visa. The appellant's wife had, therefore, offended against paras 24 and 10(a) of HC 81. For these reasons we are satisfied that the appellant's wife was an illegal entrant ab initio, and furthermore that the revocation of her conditions on her application in 1977 has not affected that position, not only by reason of the definition in s 33(1) of the Act (cited above), but also because she would have been unable in 1977 to obtain indefinite leave to remain in the United Kingdom had she not in 1973 obtained leave to enter by a false representation: both authorities were vitiated by that deceit n18. n18 It seems also probable that the time limit on the wife's stay would not have been removed on her application under para 26 of HC 82 if the Home Office had then known her to be an illegal entrant, for paragraph 26 provides that "applications for removal of the time limit" (inter alia after 4 years in this country in approved employment) "are to be considered in the light of the relevant circumstances, including those set out in paragraph 4". This being so, the appellant's application for a visa to join her was granted on his falsely representing that she was lawfully in this country, or by reason of his concealing the fact that she was an illegal entrant. Paragraph 10(a) of HC 81 provides that an immigration officer may refuse admission if satisfied that "false representations were made or material facts were concealed, whether or not to the holder's knowledge". The appellant had no entitlement to admission to join an illegal entrant and in our opinion he was properly refused entry. The appeal is dismissed, but we were glad to receive Mr Manchip's assurance that neither the appellant nor his wife would be detained and that no further action would be taken against them until the case had been considered at senior -- and possibly ministerial -- level.DISPOSITION:
Appeal dismissed.Copyright notice: Crown Copyright
