R v. Immigration Appeal Tribunal, Ex parte Patel

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	7 August 1987
Citation / Document Symbol	[1988] 1 WLR 375, [1988] Imm AR 35
Cite as	R v. Immigration Appeal Tribunal, Ex parte Patel, [1988] 1 WLR 375, [1988] Imm AR 35, United Kingdom: Court of Appeal (England and Wales), 7 August 1987, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b69918.html [accessed 21 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.

R v IMMIGRATION APPEAL TRIBUNAL, Ex parte PATEL

COURT OF APPEAL (Civil Division)

[1988] 1 WLR 375, [1988] Imm AR 35

Hearing Date: 5, 7 August 1987

7 August 1987

Index Terms:

Immigration -- Deportation -- Deception before entry -- Immigrant obtaining indefinite leave to enter United Kingdom by deception -- Immigration officer issuing notice declaring immigrant illegal entrant -- Notice withdrawn -- No act after entry justifying deportation -- Whether power to deport or to refuse immigrant re-admission as conducive to public good -- Immigration Act 1971 (c 77), s 3(5)(b) (Immigration Act 1971, s 3(5)) -- Statement of Changes in Immigration Rules (1983) (HC 169), para 85 (Statement of Changes in Immigration rules (HC 169))

Held:

In 1981 the applicant, a stateless person, obtained indefinite leave to enter the United Kingdom by means of a false representation that he was single and accompanying his parents. His fraud was subsequently discovered, and in November 1982 he was served with a notice declaring him to be an illegal entrant and taken into custody. In September 1983 the notice was withdrawn and he was released, but he was informed that his position was being considered further with a view to his possible deportation, it being accepted by the Secretary of State that the withdrawal of the notice precluded his summary removal under section 4(2) of and Schedule 2 to the Immigration Act 1971. The following month the applicant obtained a re-entry visa from the Passport Office and travelled to Inida. On his return in March 1984 an immigration officer refused him re-entry pursuant to paragraph 85 of the Statement of Changes in Immigration Rules (1983) (HC 169) on the footing that his exclusion would be conducive to the public good because of his fraud before his original entry. The adjudicator and then the Immigration Appeal Tribunal dismissed the applicant's appeals, and he applied for judicial review by way of, inter alia, certiorari to bring up and quash the tribunal's decision. Taylor J granted the application.

On the tribunal's appeal:-

Held, (1) that an immigration officer could not exercise his power to refuse a person entry to the United Kingdom, pursuant to paragraph 85 of the Statement of 1983, on the ground that his exclusion was conducive to the public good, unless the Secretary of State could have ordered his deportation on that ground under section 3(5)(b) of the Immigration Act 1971 if the person had at that time been present in the United Kingdom.

(2) Dismissing the appeal (Dillon LJ dissenting), that although a person who had obtained entry to the United Kingdom by deception but had thereafter done nothing which could justify his deportation could be summarily removed from the United Kingdom as an illegal entrant under section 4(2) of and Schedule 2 to the Act of 1971, the Secretary of State had no power under section 3(5)(b) of the Act to deport such a person on the ground that he deemed it to be conducive to the public good; and that, accordingly, the immigration officer had had no power pursuant to paragraph 85 of the Statement of 1983 to refuse the applicant re-entry to the United Kingdom on that ground.

Dictum of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 117-118, HL (E) applied.

Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124, CA and In re Owusu-Sekyere) [1987] Imm AR 425 CA distinguished.

Per Dillon LJ. There is no satisfactory logical basis for a position that the power in section 3(5)(b) of the Act of 1971 is available where a person, having without fraud obtained leave to enter the United Kingdom for a limited period, has by fraud after entry obtained indefinite leave to remain, but can never be available where the person obtained indefinite leave to enter by fraud before entry (post, pp 383A-B, 386H-387D).

Per curiam. The issuing of an entry clearance certificate or a re-entry visa to a person does not estop the Crown from refusing him entry or re-entry to the United Kingdom on the grounds of a matter known to the Crown at the time of the issuing of the certificate or visa, or create such a legitimate expectation of re-admission as to preclude the Crown from exercising the powers to exclude such a person, even where the matters relied on for the exclusion are matters known to some branch of the Crown at the time of the issuing of the certificate or visa (post, pp 380E-381B, 389A-B, B-C).

Order of Taylor J affirmed.

Cases referred to in the Judgment:

Owusu-Sekyere, In re [1987] Imm AR 425, CA.

Reg v Immigration Appeal Tribunal, Ex parte Ali Khan [1983] Imm AR 32 Reg v Immigration Appeal TribunalEx parte Cheema [1982] Imm AR 124, CA. Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74; [1983] 2 WLR 321; [1983] 1 All ER 765, HL (E)

Cases cited in the Judgment:

No additional cases were cited in argument.

Introduction:

APPEAL from Taylor J.

On an application for judicial review made pursuant to leave granted by Hodgson J on 10 February 1985, the applicant, Anilkumar Ravindrabhai Patel, sought an order of certiorari to bring up and quash a determination of the Immigration Appeal Tribunal dated 24 October 1984, whereby it had dismissed his appeal from the adjudicator who had dismissed his appeal against the refusal of an immigration officer to allow him to re-enter the United Kingdom on 23 March 1984, and an order of mandamus directed to the tribunal requiring it to allow or to reconsider the applicant's appeal. On 4 December 1986 Taylor J granted the application and made the order of certiorari sought.

By a notice of appeal dated 31 December 1986 the tribunal appealed on the grounds that the judge had (1) misdirected himself in law in holding that an immigration officer in the exercise of his discretion under paragraph 85 of the Statement of Changes in Immigration Rules (1983) (HC 169) to refuse leave to a passenger to enter the United Kingdom on the ground that his exclusion was conducive to the public good, was limited to consideration of matters relating to the passenger's conduct, character or associations after any earlier admission to the United Kingdom; and (2) erred in holding that the issue of a visa to the applicant on 13 October 1983 estopped or otherwise prevented an immigration officer from refusing him leave to enter the United Kingdom thereafter, on the basis that his exclusion was conducive to the public good, in accordance with his powers set out in paragraph 85.

The facts are stated in the judgment of Dillon LJ.

Counsel:

Nigel Pleming for the Tribunal; Andrew Collins QC and Vasant Kothari for the applicant.

Judgment-READ:

Cur adv vult 7 August. The following judgments were read.

PANEL: Dillon, Stephen Brown and Neill LJJ

Judgment One:

DILLON LJ. This is an appeal by the Immigration Appeal Tribunal against a decision of Taylor J of 4 December 1986. By that decision, the judge, by way of judicial review on the application of the present respondent, the applicant Mr Patel, quashed a determination of the tribunal of 24 October 1984. By that determination the tribunal had dismissed an appeal by the applicant against a decision of an adjudicator who, in turn, had dismissed an appeal by the applicant against a refusal of an immigration officer at Heathrow in March 1984 to allow the applicant re-entry to the United Kingdom. The refusal was under section 3(1)(a) of the Immigration Act 1971 (under which a person in the applicant's position requires leave to enter), and paragraph 85 of the Statement of Changes in Immigration Rules (1983) (HC 169), on the footing that his exclusion from the United Kingdom would be conducive to the public good.

The issues that arise on the appeal are all issues of law. They are issues of some complexity, in the somewhat tangled field of immigration law, not least because there have been differing views expressed in previous decisions as to the true meaning and effect, and indeed correctness, of a passage (which I shall set out later) in the speech of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74.

The facts are not in dispute. The applicant was born in June 1955 in Uganda of Asian parents, who were holders of British passports and citizens of the United Kingdom and Colonies. When the Ugandan Asians were expelled from Uganda, the family went, in or about 1972, to India. In or about 1975 the applicant's father made an application under the quota voucher system for admission to the United Kingdom for settlement; at that time the applicant himself was aged 20 and single. The application was granted, but not until October 1980 when quota vouchers were granted to the applicant's father and mother. In the meantime the applicant himself had married in July 1978 and a child had been born to him and his wife in August 1979. However, he represented, falsely, to the United Kingdom immigration authorities in India that he was single, and on the faith of that he was issued, on 6 April 1981, with entry clearance for "settlement accompanying parents." On the production of this entry clearance to an immigration officer at Heathrow he was given leave to enter the United Kingdom for an indefinite period on 25 May 1981. He had become a stateless person as a result of the family's expulsion from Uganda. Consequently he held an identity certificate, rather than a passport. This identity certificate would on his admission have been stamped "Indefinite leave to enter," or words to that effect.

On these facts there is no doubt at all, nor has it been disputed, that the applicant obtained permission to enter the United Kingdom by fraud, and was an "illegal entrant" within the meaning of the Act of 1971 and the Immigration Rules.

On 1 December 1981 the applicant left the United Kingdom for a visit to India and he returned to the United Kingdom on 18 January 1982. He was admitted without question as a returning resident. It seems that he used the same identity certificate as he had used on his entry in May 1981. It is possible, but not clear, that he may have obtained a re-entry visa similar to the one he obtained later in October 1983. He made -- so far as the evidence goes -- no express statement about his marital status since none was called for. However, on 18 December 1981, while he was out of the United Kingdom, his wife applied in India for an entry clearance to enable her to join him in the United Kingdom for settlement. This led to inquiries about the applicant's own entry, and he admitted having made false statements about his marital status when applying for the entry clearance in 1980. Consequently, an immigration officer decided that the applicant was an illegal entrant, a notice to that effect dated 21 November 1982 was served on him, and he was taken into custody.

In September 1983, however, the notice declaring him an illegal entrant was withdrawn and he was released from detention. This appears from a letter dated 28 September 1983 from the Home Office to a Member of Parliament; the letter goes on to state, "However his position here is now being considered further with a view to his possible deportation." It is to be assumed that this information was given to the applicant himself either directly when he was released from detention, or indirectly through the Member of Parliament.

In the course of the hearing before the adjudicator, it was said for the Home Office that the reason why the "illegal entrant" notice was withdrawn and the applicant was released was that a view had been taken in the Home Office that because the applicant had been allowed re-entry to the United Kingdom in January 1982 without any fresh express false representation on his part it was no longer possible, in the light of Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 to use the summary process of removal as an illegal entrant against him in reliance on the fraud before his original entry in 1981. No one has suggested, in the argument of this appeal, that that view, if held, was a correct view of the law, since on his re-entry in January 1982 he had used the same identity certificate as before and come back as a returning resident, ie a person who had had indefinite leave to enter or remain in the United Kingdom before he left. Nothing turns on that, however, since it is accepted that the effect of the withdrawal of the notice and his release from detention was to preclude the Home Office using the summary process of removal against him thereafter; they could not fairly have invoked that process again. Lord Bridge of Harwich stated in Ex parte Khawaja, at p 119:

"It is for the immigration authorities to decide whether or not to seek to secure the summary removal of an illegal entrant by invoking their powers under Schedule 2. If they do not do so, the leave to enter stands."

The Home Office had, however, stated in the letter to the Member of Parliament that the applicant's position was being considered further with a view to his possible deportation. The important question on this appeal is whether at that stage, having withdrawn the notice and released him from detention, the Secretary of State had indeed any power at all to deport the applicant because of his fraud and deliberately false statements before his original entry in May 1981.

The power to deport is conferred by section 3(5) of the Act, which makes a person in the applicant's position liable to deportation from the United Kingdom:

"(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported."

The only relevant power would have been that in section 3(5)(b).

What actually happened was that the applicant, having been released from detention, decided to pay another visit to India. He was a stateless person, and paragraph 10 of the Statement of Changes in Immigration Rules (1983) (HC 169) provides:

"The foreign nationals specified in the Appendix, stateless persons and other holders of non-national documents (who are collectively described in these rules as 'visa nationals') must produce to the immigration officer a passport or other identity document endorsed with a United Kingdom visa issued for the purpose for which they seek entry, and should be refused leave to enter if they have no such current visa."

Accordingly, on 13 October 1983 he went to the Passport Office in London, applied for, and was on the same day granted, a United Kingdom visa valid for return to the United Kingdom until 3 August 1984. He used the same identity certificate as before, but, in the circumstances, I see nothing sinister in that. Whatever the presumption in law may be, it is to be inferred that the official or officials in the Passport Office who handled his application did not in fact know that the Home Office was considering his possible deportation or that he had made false statements to obtain his original permission to enter this country.

Armed with his United Kingdom visa the applicant left for India on 30 November 1983. He returned on 1 March 1984, but, as I have indicated, was then refused re-entry under paragraph 85 on the footing that his exclusion from the United Kingdom would be conducive to the public good because of his fraud before his original entry of May 1981.

It is at first blush startling that the applicant should have been refused re-entry when he had been granted the re-entry visa valid for re-entry until 3 August 1984. However, a re-entry visa is not as absolute a guarantee of re-entry as might, without consideration of the immigration rules, have been supposed. Under paragraph 12 of HC 169 a re-entry visa merely ranks as an entry clearance certificate. It is said:

"Visas, entry certificates and Home Office letters of consent are to be taken as evidence of the holder's eligibility for entry to the United Kingdom, and accordingly accepted as 'entry clearances' within the meaning of the Act."

Paragraph 13 then provides:

"A passenger who holds an entry clearance with 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) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the clearance; or (b) a change of circumstances since it was issued has removed the basis of the holder's claim to admission, except where the change of circumstances amounts solely to the person becoming over age for entry under paragraphs 50 or 51 since the issue of the entry clearance; or (c) refusal is justified on grounds of restricted returnability, on medical grounds, on grounds of criminal record, because the passenger is the subject of a deportation order or because exclusion would be conducive to the public good. The scope of the power to refuse leave to enter on these grounds is set out in paragraphs 15 and 80-85."

Paragraph 85 provides:

"Any passenger except the wife and child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive 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."

It is submitted for the applicant that the various matters listed in paragraph 13(c) can only justify the refusal of entry to the holder of an entry clearance certificate or the refusal of re-entry to the holder of a re-entry visa if they are matters which were unknown to the Crown at the time of the issue of the entry clearance certificate or re-entry visa. In support of this proposition it is urged that the Crown is indivisible, and that the officer, of whatever department, who issues an entry clearance certificate or re-entry visa must be deemed to know everything that was then known to any other department of the Crown. That cannot, however, in my judgment, be right since one of the matters listed in paragraph 13(c) is that "the passenger is the subject of a deportation order;" the deportation order must realistically have been made in respect of some previous occasion before the relevant entry clearance was issued and the making of a deportation order must have been known to the Home Office even if it was not actually known to the entry clearance officer who granted the relevant entry clearance.

It is said that the issue of the re-entry visa created a legitimate expectation in the applicant that he would be re-admitted to the United Kingdom. That is no doubt in a sense so. Equally the issue of an entry clearance certificate creates an expectation in the person to whom it is issued that he or she will be admitted. But that expectation must be subject to paragraphs 13

and 85; it cannot automatically override those paragraphs so as to preclude the Crown exercising the powers under those paragraphs to exclude a person who holds a current entry clearance certificate or re-entry visa. That must be so even if the matters relied on for exclusion are matters which were known to some branch of the Crown at the time of the grant of the entry clearance certificate or re-entry visa, since the matters which can warrant exclusion under paragraph 13 include the fact that the passenger is the subject of a deportation order.

It is said, alternatively, that the issue of the re-entry visa estopped the Crown from refusing the applicant re-entry on the ground of a matter -- his previous fraud -- which was known to the Crown at the time of the issue of the visa. This, however, in my judgment, is merely another way of putting the "legitimate expectation" argument and adds nothing to it.

On the other side, it is accepted by the Immigration Appeal Tribunal that if after the withdrawal of the "illegal entrant" notice and the release of the applicant from custody the Crown would have had no power to deport him because of his fraud before his entry in May 1981, then the refusal of re-entry must have been wrong. This conclusion can be arrived at in either of two ways. Either it would not be fair, if there were no power to deport the applicant, for the Crown to seek to achieve the same result, of his exclusion from the United Kingdom, by a back door by refusing to allow re-entry when he returned from a holiday abroad. Alternatively, if the power to deport under section 3(5)(b) of the Act because deportation is deemed to be conducive to the public good does not authorise deportation because of fraud in obtaining the original entry, the power to refuse re-entry, despite a visa, "because exclusion would be conducive to the public good," logically also does not authorise refusal of re-entry because of such fraud.

Whether, therefore, the Crown had power to deport the applicant for his original fraud after the withdrawal of the "illegal entrant" notice and his release from custody is thus the crucial and the difficult question in this case.

In holding that the Crown had had no power to deport the applicant for his original fraud, Taylor J in the present case followed the decision of Stephen Brown J in Reg v Immigration Appeal Tribunal, Ex parte Ali Khan [1983] Imm AR 32. Both Taylor J in the present case and Stephen Brown J in Ex parte Ali Khan applied directly and without qualification the following passage in the speech of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 117-118, which they conceived to be directly binding on them:

"If it is desired to expel one who has obtained leave to enter by fraud, this, says Mr Blom-Cooper, can be achieved in one of two ways, viz: (i) by securing a conviction coupled with a recommendation for deportation under section 26(1)(c) by which a person is guilty of an offence punishable with a fine or imprisonment if 'he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return, statement or representation which he knows to be false or does not believe to be true;' or (ii) by deportation under section 3(5)(b) on the ground that the Secretary of State deems his deportation to be conducive to the public good. Both these procedures, Mr Blom-Cooper points out, incorporate suitable safeguards for the person alleged to have entered by fraud . . . I see great force in the contention that the illegal entrant proposed to be removed by the summary procedure requires the protection of some effective judicial process before removal. But I shall return to this when considering the second main question raised by these appeals to which, in my view, it is primarily relevant. I do not find it persuasive in considering who is an illegal entrant. On the contrary, if the only procedures available to secure the expulsion of a non-patrial who has obtained leave to enter by fraud are those suggested by Mr Blom-Cooper, it seems to me that there is a startling lacuna in the Act. A conviction under section 26(1)(c) would not necessarily lead to a recommendation for deportation; moreover, being a summary offence, it must normally be prosecuted within six months of commission, though, exceptionally, this time limit may be extended to a maximum of three years: section 28. Those who have obtained leave to enter by fraud are frequently not exposed until after three years from their arrival. On the other hand, the power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in section 15(3) -- 'that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature' -- although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry. On the other hand, no one has suggested in argument that a non-partial who has obtained leave to enter by fraud should not be liable to expulsion when the fraud is exposed, nor doubted that one would expect the Act to provide for such a case. That provision, I conclude, has to be found, if anywhere, in the statutory machinery for the removal of an illegal entrant."

Other members of their Lordships' House concurred generally in Lord Bridge's speech, but directed their own speeches to other important issues which had to be decided in Ex parte Khawaja.

One of the difficulties about that passage in the speech of Lord Bridge of Harwich is that, because of the facts in Ex parte Khawaja, he did not have occasion to address himself to the position where a person has legitimately and without any deception obtained leave to enter for a limited period, eg as a visitor or as a student, and has after entry obtained indefinite leave to remain by fraud. Such a person has never been within the definition of "illegal entrant" in section 33 of the Act of 1971, viz a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws and including also a person who has so entered. Therefore, if it is desired to expel him for his fraud, that could only be achieved by one or other of the two ways suggested by Mr Blom-Cooper as set out in the passage in Lord Bridge's speech, viz either (i) securing a conviction coupled with a recommendation for deportation under section 26(1)(c) of the Act of 1971, for which there is a time limit, or (ii) deportation under section 3(5)(b) on the ground that the Secretary of State deems his deportation to be conducive to the public good.

I can, for my part, see no satisfactory logical basis for a position that the power in section 3(5)(b) to deport on the ground that the Secretary of State deems the deportation of the person in question to be conducive to the public good is available where that person, having without fraud obtained leave to enter for a limited period, has by fraud after entry obtained indefinite leave to remain, but can never be available where the person obtained indefinite leave to enter by fraud before entry.

There is, of coruse, a difference between the case of the person who obtained indefinite leave to enter by fraud before entry and the case of the person who after entry obtained indefinite leave to remain by fraud, in that the summary procedure for the removal of an illegal entrant is available in the former case and not in the latter. That is not, however, logically relevant, since the availability of the summary procedure for the removal of an illegal entrant has not been put forward as the reason why deportation under section 3(5)(b) is not available, or may not be available, in the case of a person who has obtained indefinite leave to enter by fraud before entry. The reasoning of Lord Bridge of Harwich in the passage which I have cited is the other way round, viz the summary procedure for the removal of an illegal entrant must be available in the case of the person who has obtained indefinite leave to enter by fraud before entry because in that case the remedy of deportation under section 3(5)(b) of the Act is not, or may not be, available, and there would be a lacuna in the Act if the summary procedure were not available.

I turn, therefore, to the two decisions of this court where it has been held that the remedy of deportation under section 3(5)(b) is available where a person who has entered under a permission to enter for a limited period has by fraud after entry obtained unlimited leave to remain.

The first is Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124, where the leading judgment was given by Lord Lane CJ, with the concurrence of Ackner and Oliver LJJ. By one of the quirks of timing which sometimes bedevil our system of precedent, this case was decided after the conclusion of the argument in the House of Lords in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 but some four weeks before the speeches of their Lordships were delivered; however, the decision was only reported later. The court in Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124 upheld the giving by the Secretary of State of notices of intention to deport under section 3(5)(b) on the ground that this was conducive to the public good, where each of the appellants whom it was proposed to deport had entered the United Kingdom legitimately, with permission to enter for a limited period, and had fraudulently after entry gone through a "marriage of convenience" with a woman settled here and then applied for and obtained indefinite leave to remain on the basis of that supposed marriage. In his judgment Lord Lane CJ set out the arguments of Sir Charles Fletcher-Cooke for two of the then appellants, at p 129:

"Sir Charles's submissions on this first point, submissions which were adpted by Mr Nathan, are essentially these. If one looks, he suggests, at the history of the section and the earlier regulations and the pronouncements made by the Secretary of State at that time, who was Mr Reginald Maudling, it is clear that the intention was, on the part of the Home Secretary, to operate section 3(5)(b) as a special power, to be used rarely and then only in cases where it could be shown that the applicant was a highly undesirable person, a racketeer, for example, or an importer of drugs or the like; someone who could be described as coming within the useful and compendious phrase used by Sir Charles as 'a menace to society.' The result is that Sir Charles asks this rhetorical question with regard to the two cases with which he is concerned: Can it properly be said that on the facts of these cases, the proved existence of a marriage entered into for the purpose of defeating the immigration rules by deceit, that it was conducive to the public good that the appellant in each case should be deported? He submits, both respectfully and, if I may say so, persuasively, that the element of deceit is not enough on its own to bring in that power contained in section 3(5)(b). If there is no suggestion the behaviour is going to be repeated, he submits that that is not enough. For example, a single false tax return would not be enough. He points out that almost every overstayer has practised some sort of deceit upon the authorities in order to enable himself to stay without apprehension. There must, he suggests, be some greater perturbation of society than that exhibited in these cases by entering into a marriage of convenience."

The ratio of the decision is then set out in the following paragraphs, at pp 130-131:

"What we have to determine in the present cases is whether there were proper grounds upon which the Secretary of State could reasonably come to the conclusion that the continued presence of these men in the United Kingdom was not conducive to the public good; and secondly, whether the Secretary of State exercised his powers under the Act genuinely for that reason, or whether on the other hand his actions under section 3(5)(b) were dictated by an oblique purpose, namely the desire to adopt an administratively convenient method, or a method which would deprive the appellant of one of his avenues of appeal, a method which would greatly be more expeditious from the Secretary of State's point of view.

"As to the latter point, the suggestion that the Secretary of State was using the section 3(5)(b) procedure as an administrative convenience, there is to my mind no shred of evidence and I would reject that contention out of hand. As to the former point, this is expressed by Sir Charles in the way that I have indicated, namely that it is clear from the remarks of the then Home Secretary and observations in various cases that the section 3(5)(b) power is a special one. Indeed he goes so far as to say that that much is made apparent by the sections of the Act which I have read. The subsection is aimed, he says, at public menace and should not and cannot be used to catch a mere deceiver. I disagree. Marriage is still, like it or not, one of the cornerstones of our society despite recent trends of behaviour. If a person chooses to use a ceremony of marriage or the status simply as a dishonest and deceitful way of avoiding the law -- the immigration law or any other law -- then I consider it properly open for the Secretary of State to come to the conclusion that that person's continued presence in this country is not conducive to the public good, and that conclusion is well within not only the literal meaning of the Act, but also within the spirit of the Act . . ."

That decision is binding on us. Beyond that I, for my part, would respectfully concur in the reasoning of Lord Lane CJ.

The law as developed in Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124 was taken a bit further by the decision of this court in Owusu-Sekyere [1987] Imm AR 425. This was subsequent to the decision of Taylor J in the present case, although Taylor J had before him a transcript of the decision at first instance of Mann J in In re Owusu-Sekyere which was affirmed by this court. In Owusu-Sekyere the facts were that the appellant had entered this country lawfully for a limited period, and while lawfully here he had married a woman settled here. Some while later he applied for leave to remain and was granted indefinite leave to remain on the basis of his marriage. To get this leave to remain he fraudulently represented that he was living with his wife and the marriage was a continuing marriage, whereas in truth and to his knowledge, he and his wife had parted some 18 months before he made his application, the marriage had irretrievably broken down, and there had been court proceedings. This court upheld the decision of the Secretary of State to make a deportation order against the appellant under section 3(5)(b) on the ground that the Secretary of State was satisfied that the appellant's deportation would be conducive to the public good because the appellant had employed deception in order to obtain settlement. It is thus a clear decision, binding on us, that deportation under section 3(5)(b) is available where, after legitimate entry for a limited period, the person concerned has used fraud to obtain settlement.

In In re Owusu-Sekyere, the court considered at some length the passage in the speech of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 which I have already quoted. They were concerned to decide whether what Lord Bridge had said was binding on them, as part of the ratio of his decision, and also, for that matter, whether Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124 ought to be held to have been wrongly decided because inconsistent in principle with what Lord Bridge said. All the members of the court agreed that what Lord Bridge said was obiter, and not binding as judicial precedent on other courts; unfortunately, Stocker LJ (with whom Fox LJ agreed) and Lloyd LJ did not agree, as I read their judgments, on what the precise intendment and effect of what Lord Bridge said was.

Although the conclusion of this court In re Owusu-Sekyere that what Lord Bridge of Harwich said in the passage quoted was obiter may be binding on us, I have great difficulty in seeing how that conclusion could have been correct. The main questions which their Lordships had to decide in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 are set out by Lord Bridge at p 114. The first was: "Who can be treated as an illegal entrant under the Immigration Act 1971?" Mr Blom-Cooper argued for the appellant, Mr Khera, that an "illegal entrant" was equivalent to a clandestine entrant and did not include a person who had entered with leave obtained by fraud. If that were right, the summary procedure for the removal of an illegal entrant was not available to deal with the person who had obtained leave to enter by fraud. To maintain his argument Mr Blom-Cooper obviously had to meet the comment that there would be a lacuna in the immigration law if there were no means of expelling a person who had obtained indefinite leave to enter by fraud, and he therefore suggested the two remedies quoted by Lord Bridge of securing a conviction with a recommendation for deportation and a deportation under section 3(5)(b) on the ground that the Secretary of State deemed the person's deportation to be conducive to the public good. Lord Bridge dealt with that argument in the passage which I have quoted and concluded that one would expect the Act to contain a provision that a non-patrial -- any non-patrial as I read his speech -- who has obtained leave to enter by fraud should be liable to expulsion when the fraud was exposed, and that that provision was to be found, if anywhere, in the statutory machinery for the removal of an illegal entrant. It seems to me that these were necessary steps in the reasoning of Lord Bridge in reaching the conclusion, which he expressed at p 118, that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants. If that is so, what he said was, in its substance, ratio and not obiter.

Whether, however, what Lord Birdge said was ratio or obiter, what he was looking for was a comprehensive remedy which could be applied to any -- and I stress "any" -- person who obtained leave to enter by fraud by expelling him when the fraud was exposed. So far as deportation was concerned, it did not match up to the requirements of a comprehensive remedy because deportation on the ground that it was conducive to the public good cannot apply, and cannot have been intended to apply, to deport a perfectly respectable established resident on grounds arising from the circumstances of his original entry, ie a man who has lived a blameless and worthwhile life here for many years after an original fraudulent entry. Lord Bridge refers to the examples given in section 15(3) of the Act, "that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature," but he expressly states that those examples were not exhaustive, and he must obviously have realised that the examples given in section 15(3) were the exceptional cases where the person concerned was to have no appeal against the decision to make a deportation order against him. He uses these examples merely to underline the point that it cannot have been intended that deportation as conducive to the public good should be used in the case of the perfectly respectable established resident. Therefore, deportation was not the comprehensive remedy for which he was looking. But he was not laying down at all, in my judgment, that deportation on the ground that it would be conducive to the public good was not available at all in any case where a person had obtained entry by fraud.

If I am right in this interpretation of what Lord Bridge said, or if others were right in holding that what Lord Bridge of Harwich said was obiter and so is not binding on us, I am free to apply the law as it logically follows from the decisions in Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124 and In re Owusu-Sekyere [1987] Imm AR 425 and I am free to reject the notion that a person who obtains indefinite leave to enter by fraud before entry can never be deported for his fraud, but a person who having leave to enter for a limited period obtains indefinite leave to remain by fraud after entry may be deported because of his fraud.

On the facts of this case, the applicant was not an established long-term resident of this country. His immigration status was being investigated within a year of his original entry. The withdrawal of the "illegal entrant" notice and his release from detention in September 1983 were accompanied by a reservation of the possibility that he might be deported. In my judgment, the Crown then still had power to deport him (subject to the prescribed procedures) because of his fraud which procured his original entry. There was nothing wrong, therefore, in considering his case under paragraphs 13 and 85 of the Statement of Changes in Immigration Rules (1983) (HC 169) on his return in March 1984. On the facts, there was no basis for the adjudicator or the Immigration Appeal Tribunal to interfere with the decision of the immigration officer; it was not unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

Accordingly, for these reasons, I would for my part allow this appeal, discharge the order of Taylor J and restore the decision of the Immigration Appeal Tribunal.

Judgment Two:

STEPHEN BROWN LJ. I gratefully adopt Dillon LJ's review of the facts in this appeal. There is no doubt that the applicant obtained entry to the United

Kingdom on 25 May 1981 by deception. He was not a single man, as he represented himself to be to the entry clearance officer. He was therefore an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971. Upon the discovery of his deception he was liable to be removed summarily under the statutory procedure provided in Schedule 2 to the Immigration Act 1971.

In 1982 his deception was discovered after his wife had applied to join him. In November 1982 the Secretary of State declared him an illegal entrant and he was arrested and detained. There can be no doubt that the Secretary of State then had power to remove him from the United Kingdom under the statutory machinery contained in Schedule 2 to the Act of 1971. However, having apparently embarked upon that course in September 1983, the notice was withdrawn and the applicant was released from detention. The letter announcing this step nevertheless contained the statement that his position was being considered further with a view to his possible deportation. However, before any further step was taken the applicant, as a stateless person, obtained a re-entry visa from the Passport Office and left for India. In March 1984, within the time limit provided for by his re-entry visa, he returned to the United Kingdom. He was then refused entry in the following terms:

"You have sought leave to enter on the ground that you had an indefinite leave to enter the United Kingdom when you left, and that you have not been away for longer than two years but this is not conclusive in your favour. You hold a current visa endorsed 'for journeys to the United Kingdom' but I am satisfied that the leave to enter given on 25 May 1981 and the settlement visa given on 6 April 1981 were obtained by deception and in the light of this I consider that your exclusion from the United Kingdom is conducive to the public good."

I agree that the real point in this appeal is whether the Secretary of State had power to deport the applicant on grounds arising from the circumstances of his original entry. There is no suggestion that the applicant has been guilty of conduct since entry which would justify his being deported under section 3(5)(b).

Taylor J based his decision on that part of the speech of Lord Bridge of Harwish in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 117-118 which has been cited by Dillon LJ. It was submitted on behalf of the applicant that Lord Bridge of Harwich there expressed a clear opinion that deportation was not an appropriate procedure to be adopted in the case of someone who had not provided by his behaviour after entry some positive and specific ground for deeming his deportation to be conducive to the public good. The Act provided statutory machinery for the removal of an illegal entrant. That procedure had in fact been commenced in this case but was later abandoned.

In In re Owusu-Sekyere [1987] Imm AR 425, the court considered the question of deportation in a case where the relevant deception was practised after entry. Dillon LJ has stated that Stocker LJ (with whom Fox LJ agreed) appears to have taken a different view of the meaning and effect of the relevant passage of the speech of Lord Bridge of Harwich in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 from that taken by Lloyd Lj. As I read Stocker LJ's judgment, he considered that although Lord Bridge's speech was obiter and whilst he was not definitively construing section 3(5)(b) of the Act of 1971, he was nevertheless expressing a considered opinion on the proper exercise by the Secretary of State of his powers under the section. Stocker

LJ, at p 440, interpreted this to mean:

"where the facts justify it, a distinction may properly be drawn between deceptions on arrival to obtain entry, and deceptions later to obtain an enlarged or unlimited right of residence."

Lloyd LJ considered such a distinction to be illogical. It is also to be observed that Mr Collins who appeared for the appellant in that case argued (albeit for a different purpose) that there should be no distinction. However, in this case he relied upon Lord Bridge's words for the proposition that there is a clear distinction. In Reg v Immigration Appeal Tribunal, Ex parte Ali Khan [1983] Imm AR 32 it was conceded that there was such a distinction.

It may be that this question will receive further consideration in the future, but for the present I feel it right to follow what I understand to be the meaning and effect of Lord Bridge's words. Whether they form part of the ratio decidendi of the case -- which is certainly arguable -- or merely obiter dicta, they must be heeded. In the case of a person who has obtained entry by deception the statutory procedure for removal as an illegal entrant is the appropriate procedure and should be followed. Deportation, which may possibly have far-reaching consequences, particularly for a stateless person, was not, in the view of Lord Bridge of Harwich [1984] AC 74, 117, "intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry." For present purposes I consider it would be wrong to exclude the applicant from such a category. Despite the apparent illogicality of the distinction and the reasoning of Lord Lane CJ in Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124, I think that Taylor J was correct in deciding that this case fell within the ambit of Lord Bridge's words.

On this ground, therefore, I would dismiss this appeal.

On the question of estoppel or "legitimate expectation," I agree with the judgment of Dillon LJ. The issue of the re-entry visa by the Passport Office was a routine administrative process and, in my judgment, could not of itself create an estoppel.

Judgment Three:

NEILL LJ. The facts of this case have been set out in the judgment of Dillon LJ. I gratefully adopt his recital of the facts which I need not repeat. I would also express my agreement with Dillon LJ on the question of estoppel and legitimate expectation. If the Secretary of State had, and has, the power to deport the applicant in accordance with section 3(5)(b) of the Immigration Act 1971, I can see no adequate basis for holding that the Secretary of State is debarred from exercising such a power by reason of some estoppel or by reason of a legitimate expectation based on the issue of the re-entry visa in October 1983.

On the central question before us, however, that is whether the making of a deportation order in the circumstances of the present case was right, I must express my conclusion in my own words.

The main relief sought in these proceedings is an order to quash the determination of the Immigration Appeal Tribunal dated 24 October 1984 dismissing the applicant's appeal from the determination of the adjudicator dismissing the applicant's appeal against the refusal of re-entry into the United Kingdom by the Chief Immigration Officer on 23 March 1984.

The refusal of leave to re-enter was in the following terms:

"You have sought leave to enter on the ground that you had an indefinite leave to enter the United Kingdom when you left, and you have not been away for longer than two years but this is not conclusive in your favour. You hold a current visa endorsed 'for journeys to the United Kingdom' but I am satisfied that the leave to enter given on 25 May 1981 and the settlement visa given on 6 April 1981 were obtained by deception and in the light of this I consider that your exclusion from the United Kingdom is conducive to the public good."

It is at once apparent: (a) that the reason for the decision by the immigration officer that the exclusion of the applicant from the United Kingdom was conducive to the public good was limited to the deception practised by the applicant on and before his first entry into the United Kingdom on 25 May 1981, and (b) that the immigration officer was acting or purporting to act in accordance with paragraph 85 of the Statement of Changes in Immigration Rules (1983) (HC 169).

It has been accepted in the course of the argument before us, however, that though formally the proceedings are concerned with the refusal of entry by the immigration officer, the real question for consideration is whether the Secretary of State can now make a deportation order against the applicant. The Act of 1971 provides machinery for the control of entry into and residence in the United Kingdom of non-patrials. It also provides for the expulsion from the United Kingdom, in certain circumstances, of non-patrials who are present here even though they may have been previously granted indefinite leave to remain. Two distinct methods are provided for this expulsion. The first method involves deportation under section 5 of the Act of 1971 and the procedure set out in Schedule 3. The second method involves summary removal under the procedure set out in Schedule 2.

It seems clear that at all material times after the applicant's entry into the United Kingdom on 25 May 1981 until the notice dated 21 November 1982 was withdrawn at the end of September 1983, he was liable to be treated as an illegal entrant into the United Kingdom. The applicant was in breach of the immigration laws because he had secured entry by deception: see section 26(1)(c) of the Act. But the question arises whether he was also, by reason of that deception alone, a person who could be made the subject of a deportation order on the ground, to quote the words of section 3(5) that "the Secretary of State deems his deportation to be conducive to the public good."

To my mind there is great force in the argument that the power to deport ought not to be affected by the fact that the intended deportee may also at the same time be subject to the special procedures available for the expulsion of illegal entrants. Thus one can imagine a case where the deception practised on the immigration authorities was of an ingenious and serious kind which might be copied by others and where there may be a strong case for saying that the deportation of that person was conducive to the public good even though his only known offence was the deception practised by him to gain entry into the United

Kingdom. Moreover, this approach would seem to be in accord with the judgment of Lord Lane CJ in Reg v Immigration Appeal Tribunal, Ex parte Cheema [1982] Imm AR 124 where he rejected the argument that section 3(5)(b) was aimed at those who were a public menace and could not be used to catch a mere deceiver. The relevant passage in the judgment of Lord Lane CJ has already been cited by Dillon LJ.

I am also impressed by the argument that there is no satisfactory or logical distinction between a man who seeks indefinite leave to remain and settlement by means of a deception practised on or before entry and a man who seeks indefinite leave to remain and settlement by means of a deception practised after entry. The decision of this court in Cheema's case and in In re Owusu-Sekyere [1987] Imm AR 425 (which are binding on us) show that post-entry deception can properly be relied on as a basis for a deportation order.

In considering the right of the Secretary of State to make a deportation order in the present case, however, it is necessary to take account of the words used by Lord Bridge of Harwich in his speech in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74. The argument on behalf of the appellants in Khawaja's case was to the effect that when considering the case of a resident who was not a patrial the term "illegal entrants" should be confined to those persons who, having entered the United Kingdom clandestinely, had never passed through immigration control. Lord Bridge of Harwich rejected this argument. In doing so, however, he considered the allied submission that persons who had obtained leave to enter by fraud could be expelled by means of a deportation order.

The first method suggested by counsel was to secure a conviction under section 26(1)(c) of the Act of 1971 coupled with a recommendation for deportation. Lord Bridge of Harwich clearly regarded this method as of little help. He said, at p 117:

"A conviction under section 26(1)(c) would not necessarily lead to a recommendation for deportation; moreover, being a summary offence, it must normally be prosecuted within six months of commission, though, exceptionally, this time limit may be extended to a maximum of three years: section 28. Those who have obtained leave to enter by fraud are frequently not exposed until after three years from their arrival."

The second method suggested by counsel of dealing with persons who had obtained entry by fraud, on the hypothesis that they were not illegal entrants, was for the Secretary of State to make a deportation order on the ground that he deemed the deportation to be conducive to the public good. But Lord Bridge was not very impressed by this method either. Having prefaced his remarks with the words, at p 117:

"if the only procedures available to secure the expulsion of a non-patrial who has obtained leave to enter by fraud are those suggested by Mr Blom-Cooper, it seems to me that there is a startling lacuna in the Act."

a little later he continued, at pp 117-118:

"On the other hand, the power given to the Secretary of State to deem deportation to be conducive to the public good seems to me to be intended for cases where the continued presence of the deportee would be objectionable on some positive and specific ground. The examples given in section 15(3) -- 'that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature' -- although clearly not exhaustive, nevertheless illustrate the kind of objection contemplated. I cannot suppose that this power was ever intended to be invoked as a means of deporting a perfectly respectable established resident on grounds arising from the circumstances of his original entry. On the other hand, no one has suggested in argument that a non-patrial who has obtained leave to enter by fraud should not be liable to expulsion when the fraud is exposed, nor doubted that one would expect the Act to provide for such a case. That provision, I conclude, has to be found, if anywhere, in the statutory machinery for the removal of an illegal entrant."

I do not understand this passage in Lord Bridge's speech as being intended to be a definitive construction of section 3(5)(b) of the Act. Furthermore, it seems to have been the unanimous view of the Court of Appeal in In re Owusu-Sekyere that the passages which I have cited did not form part of the ratio decidendi of Lord Bridge's decision and were merely obiter.

However that may be, the views expressed by Lord Bridge on the proper scope of section 3(5)(b) of the Act of 1971 must be treated with the greatest respect and as authoritative guidance as to the use of a deportation order where the only ground relied on is that the intended deportee obtained entry into the United Kingdom by deception.

It is true that in his speech in Reg v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, 117, Lord Bridge referred specifically to "deporting a perfectly respectable established resident." These words are capable of being understood to mean that Lord Bridge meant to confine his observations to persons who had been in the country for a long period. On reading the whole passage at pp 117F-118B, in the context in which the words were used, I do not, for my part, find it possible to place such a restricted meaning on Lord Bridge's words. In my judgment, he was intending in this passage to expose the fallacy of counsel's argument by demonstrating the limitations on the power to deport under section 3(5)(b) and, in doing so, to indicate that in his view section 3(5)(b) was not intended to be used and was not appropriate where an illegal entrant had done no more than obtain entry by deception and where he was amenable to the special machinery provided by Schedule 2.

I have also taken account of the judgment in this court in In re Owusu-Sekyere. For my part, I can see nothing in the judgment of Stocker LJ (with which Fox LJ agreed) that throws doubt on my understanding of the effect and meaning of Lord Bridge's speech.

Accordingly, I agree with the judgment of Stephen Brown LJ on this aspect of the case. I recognise that this matter may need to be looked at afresh hereafter in another place, but it seems to me that, as the law stands at present and in this court, we should follow the guidance of Lord Bridge of Harwich as to the scope of section 3(5)(b). Accordingly, for the reasons I have endeavoured to outline, I would dismiss the appeal.

DISPOSITION:

Appeal dismissed with costs.

Leave to appeal.

SOLICITORS:

Treasury Solicitor; Stocken & Lambert