R v. Secretary of State for the Home Department, Ex parte Chung and Others

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	21 October 1993
Citation / Document Symbol	[1994] Imm AR 183
Cite as	R v. Secretary of State for the Home Department, Ex parte Chung and Others, [1994] Imm AR 183, United Kingdom: High Court (England and Wales), 21 October 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b70fc.html [accessed 27 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte CHUNG and others

Queen's Bench Division

[1994] Imm AR 183

Hearing Date: 21 October 1993

21 October 1993

Index Terms:

Illegal entrant -- leave to enter secured by production of work permit issued without authority -- whether in the event the holder of such a false work permit was an illegal entrant -- whether that was only the case if the originator of the false document was the agent of the person who subsequently used it. Immigration Act 1971 ss 3(1), 33(1), sch 2 para 4.

Held:

The applicants for judicial review were citizens of Hong Kong who had secured leave to enter by virtue of work permits. Those permits, it was subsequently discovered, had been issued without authority by a corrupt official in the Department of Employment. The Secretary of State concluded that the applicants were accordingly illegal entrants. It was assumed that neither the applicants nor their employer knew that the work permits had been improperly issued.

Counsel argued tentatively that on a true construction of paragraph 4(2)(b) of the second schedule to the 1971 Act, the production of a false work permit did not affect the validity of the leave in consequence granted. He further submitted that the settled cases related only to instances where the originator of the false document was in some way the agent of the person subsequently using it. That was not so in the instant case.

Held

1. Following Chan no distinction could be drawn between the consequences of the provisions of paragraph 4(2)(a) and of paragraph 4(2)(b) in the second schedule to the 1971 Act.

2. The reasoning in Khan did not place any emphasis on the particular status of the third party whose fraud procured an illegal entry. Likewise no such distinction could be drawn on the basis of Chan, as between a person acting as an agent and one not so acting, in the creation of the false document.

3. It followed that the applicants were illegal entrants.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Khan [1977] 1 WLR 1466: [1977] 3 All ER 538.

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139.

Kwong Fai Chan v Secretary of State for the Home Department [1992] Imm AR 233.

Counsel:

N Blake for the applicants; M Shaw for the respondent

PANEL: Laws J

Judgment One:

LAWS J: These are three applications for judicial review. They challenge the decision by the Secretary of State to treat each of the three applicants as illegal immigrants on 12 February 1992. The facts are these.

All three were Hong Kong nationals; all three entered the United Kingdom in the autumn of 1990. They came to work as cooks at Mr Ng's restaurant at West Drayton. Each of them carried with him what seemed to be a perfectly valid work permit. Before 1990, each had had some experience in the restaurant trade in Hong Kong. All of them arrived in the United Kingdom with their work permits seeking employment at the restaurant.

They were given leave to enter by the immigration officer. Subsequently, it turned out that these work permits were issued by a person who had been in the employment of the Department of Employment but had since been dismissed. He issued the permits without any proper documentation; he issued them without any proper supporting authority. His activities are described by Mr Lamb of the Department of Employment in this way:

"I have also ascertained that the work permits were issued by a person who has since been dismissed from his employment with the Department and who is regarded as having knowingly and deliberately issued a large number of work permits improperly and in an unauthorised manner, and beyond the powers granted to him by the Department. Each of the work permits had a serial number and that number should relate to a file which would contain the relevant application form and supporting references. It has not been possible to trace such a file in any of these three cases. This accords with the situation which has been found to exist in relation to a large number of work permits issued by the dismissed employee. I believe that no files were ever brought into being in relation to these three applications and that there never was any supporting documentation for the issue of the permits."

There is some evidence before the court from Mr Ng, the restaurant owner. It is enough to say that there is no real suggestion that there was any deception by the three applicants themselves, nor is there any evidence to my mind that Mr Ng, whose evidence includes some description of the way in which the work permits were applied for, was guilty of any deception on behalf of the applicants. I propose to approach the case on the basis that there was no guilty knowledge of any kind either in any applicant or in his employer, or in anyone who could -- to use a word which figured in the course of Mr Blake's argument -- be regarded as agent of any of the applicants. Nevertheless it is clear that Mr Blake accepts that the work permits were issued without authority.

On those facts the question arises whether, upon the proper construction of the relevant provisions of the Immigration Act 1971, each of these applicants is an illegal entrant. Section 3(1) provides, so far as material:

". . . where a person is not a [British citizen]:-

(a) He shall not enter the United Kingdom unless given leave to do so in accordance with this Act."

Section 4(1) distributes the functions of the grant or refusal of leave to enter to immigration officers and the power to grant leave to remain thereafter to the Secretary of State.

Section 33(1) is an interpretation section and it includes a definition of "illegal entrant". That definition is:

"'Entrant' means a person entering or seeking to enter the United Kingdom, and 'illegal entrant' means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered."

Schedule 2 bears a cross-heading, "Administrative Provisions as to Control on Entry -- Part 1 General Provisions". Paragraph 2 makes provision as regards the immigration officer's power to examine persons arriving at ports, and paragraph 4 goes on to provide, so far as material to the present case, as follows:

"(1) It shall be the duty of any person examined under paragraph 2 or 3 above to furnish to the person carrying out the examination all such information in his possession as that person may require for the purposes of his functions under that paragraph.

(2) A person on his examination under paragraph 2 or 3 above by an immigration officer shall, if so required by the immigration officer --

(a) produce either a valid passport with photographs or some other document satisfactorily establishing his identity and nationality or citizenship, and

(b) declare whether or not he is carrying or conveying documents of any relevant description specified by the immigration officer, and produce any documents of that description which he is carrying or conveying."

Mr Blake's submissions can best be understood if I refer first to the authorities which have helpfully been cited to me. By way of background, it is right to recall the decision of the House of Lords in ex parte Khawaja [1984] AC 74 in which the House authoritatively determined the correct construction of the definition of "illegal entrant" in section 33(1). I cite the well known passage from Lord Bridge at page 118:

"My Lords, in my opinion, the question of whether a person who has obtained leave to enter by fraud 'has entered in breach of the Act' is purely one of construction. If the fraud was a contravention of section 26(1)(c) of the Act, the provisions of which I have already quoted, and if that fraud was the effective means of obtaining leave to enter -- in other words if, but for the fraud, leave to enter would not have been granted -- then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was 'in breach of the Act'. It is on this simple ground and subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants."

It is I think not necessary to go into the jurisprudence which preceded the Khawaja case save for one authority, to which Mr Blake attached importance before me; the decision of the Court of Appeal in ex parte Khan [1977] 1 WLR 1466. In that case, the appellant married a United Kingdom citizen in Pakistan. She arrived at Heathrow; she produced a Pakistani passport which she had from her husband. In fact it was not her passport at all, and in short was invalid, but the immigration officer let her in. Later there were inquiries and the truth was discovered and she was detained as an illegal immigrant.

Megaw LJ said this, at page 1470:

"If a person obtains from the immigration officer leave to enter by reason of the use by that person of, for example, a materially false document -- and by 'materially false' I mean a document the falsity of which is material in leading to the decision that leave should be given -- and if that document has been obtained for that person, and the attempted entry on the basis of the false document has been organised, by an agent who himself has been guilty of fraud for the purpose of enabling that person to enter this country illegally, when the position is the same as it was in in re Maqbool Hussain, where the fraudulent passport was presented. . . it does not make any difference for this purpose that the entrant himself did not know of the breach of the immigration laws which she was in fact committing."

So Khan holds that where an entry into the United Kingdom has been procured by a deception by a third party (though Mr Blake would emphasise that Megaw LJ's words were "the agent"], then the entrant is as much an illegal entrant as if the deception had been his own. Khawaja holds that an entrant himself obtaining entry by deception is within the section 33(1) definition of "illegal entrant", but it is right to notice that later on in Lord Bridge's speech in that case, he expressed some doubt as to the correctness of the Khan decision without going fully into the matter. Khan has since been followed and upheld in later decisions in the Court of Appeal which Mr Blake did not challenge before me. However, in the course of his argument, he placed some emphasis upon a submission which draws close attention to its true scope.

In Chan, facts not too distant from those of the present case were before the Court of Appeal; the applicant came from Hong Kong. He had paid @2000 for a work permit. He arrived in the United Kingdom armed with his Hong Kong passport and the work permit. It was accepted for the purposes of the proceedings that the fact that the work permit had been improperly issued and was invalid was quite unknown to the applicant. In fact, as a matter of history, it seemed that it had been improperly issued by the very same ex-official of the Department of Employment who issued the work permits in the present case. He obtained leave to enter. The facts however came to light and, in due course, the Home Office decided to treat him as an illegal entrant. His application for judicial review was, as it happens, heard as a matter of first instance adjudication by the Court of Appeal, who had granted leave. Neill LJ having set out the facts, cited the passage from Lord Bridge's speech in ex parte Khawaja (which I have cited), and also the passage from Megaw LJ's judgment in the Khan case which I have set out. He said this.

"It is true that in ex parte Khan the court was concerned with a false passport and that the obligation imposed by paragraph 4(2)(a) of Schedule 2 to the Act of 1971 is to produce a 'valid passport' if so required. I am satisfied, however, that the obligation imposed by paragraph 4(2)(b) to produce other documents "specified by the immigration officer" requires, certainly in the case of a document such as a work permit, that the document should be genuine. A work permit is clearly a material document both for the purposes of obtaining leave to enter and for the purpose of determining the conditions of such leave. In this context, I can see no satisfactory basis for distinguishing between an invalid passport and an invalid work permit. It follows therefore, on the authority of the decision in ex parte Khan [1977] 1 WLR 1466 that if leave to enter is given on the basis of a work permit which later proves to be false the entrant does not enter the United Kingdom with leave to do so 'in accordance with' the Act of 1971. Moreover, it is clear that the immigration officer would have refused the applicant leave to enter had he known of the invalidity of the work permit at the time of entry."

In setting out this reasoning, it seems to me clear that the learned lord justice accepted as binding a passage in the decision in Khan in which Megaw LJ had expressed his conclusion by another route from that set out in the passage I have quoted earlier.

What the lord justice in Khan said, describing his reasoning as another way of expressing the same point, was this:

"While leave is no doubt given by the mere formality of the immigration officer granting his leave by stamping or endorsing the passport or other document produced in allowing the applicant to pass through the immigration barrier, nevertheless that does not mean that the person has not been in breach of the immigration laws in entering. For example, in this case, a part of the necessary procedure to be gone through for the purpose of obtaining leave is that which is set out in paragraph 4 of Schedule 2 to the Act of 1971. Paragraph 4(2) requires:

'A person on his examination . . . by an immigration officer shall, if so required by the immigration officer --(a) produce either a valid passport with a photograph or some other document . . .' -- and so on.

In the present case, the appellant innocently, as I am assuming, produced a document which purported to be her passport but which was certainly not a valid passport' for the purposes of her application for permission to enter the country. It was a passport of a person other than herself, which the immigration officer was led to believe was a valid passport for the appellant. Though the appellant did not know of the invalidity of the document, she, as we know, in fact produced an invalid passport. Thus she had failed to comply with that vital part of the provisions in the procedure involving entry. She both sought entry and entered in breach of the immigration laws . . . The appellant did not enter the United Kingdom with leave to do so 'in accordance with this Act.' She was an 'illegal entrant' within the definition of section 33(1)."

Mr Blake's submission on analysis (I hope without unfairness), can be encapsulated in three propositions: Firstly he said that paragraph 4(2)(b) of schedule 2 of the Immigration Act does not create conditions which have to be fulfilled by a person seeking leave to enter if any leave subsequently obtained is to be regarded as granted in accordance with the Act under section 3(1).

It would follow from this submission that a failure to comply with a requirement imposed under paragraph 4(2)(b), in a case where the applicant subsequently obtains leave to enter, would not produce the conclusion that the applicant is thereafter to be regarded as an illegal entrant under section 33(1). Thus, says Mr Blake, the fact that here the applicants produced what I may call "invalid work permits", in response to an expressed or implied paragraph 4(2)(b) request by the immigration officer, is not relevant to the legality of their leave to enter subsequently given; so that the false work permits cannot avail the Home Office to establish that the applicants are within the section 33(1) definition.

Mr Blake's second submission is linked to his third. The second is that in a case where an act of deception or other breach of the immigration law is relied on by the Home Office to establish that a person is an illegal entrant, the deception or the breach must be committed, if not by the applicant for entry himself, at least by somebody who is an agent of his. This, he says, is vouchsafed by the first passage from the judgment of Megaw LJ which I have set out.

The third submission is that, on the facts here, and indeed I would have thought on the facts in Chan, the false work permits were produced by a person having ostensible authority on behalf of the Department of Employment to issue work permits. Given the doctrine of ostensible authority in the law of agency, he says that the applicant, and no doubt others who might be concerned (such as the applicants' employer), were entitled to regard the work permits as issued properly, within the authority of the Department of Employment, since the dismissed official had ostensible authority to issue the documents.

The first of these submissions is in my judgment concluded against Mr Blake by the authority of the Court of Appeal in Chan. Even if it were arguable, looking at the case of Khan on its own, that the passage from Megaw LJ's judgment (in which paragraph 4(2)(a) is discussed) was obiter, and thus open to assault by Mr Blake before me, it is quite clear that the Court of Appeal in Chan treated that reasoning by Megaw LJ as binding on them and thus it is binding on me. And there can be no escape from the proposition that in Chan the passage from Neill LJ's judgment (which I have set out) bore no relevant distinction for the purposes of the section 33 definition between a paragraph 4(2)(a) case concerned with a passport and a paragraph 4(2)(b) case concerned with a work permit. In fact, in that case, Mr Macdonald QC for the applicant had, as Leggatt LJ said, "bravely argued" that distinction was to be drawn between the two sub-paragraphs, because of the presence of the word "valid" in the first and its absence in the second. That submission was clearly rejected, and in fairness it has not distinctly been pursued before me by Mr Blake.

Taking the materials in Khan and Chan together, in my judgment I have no option but to conclude but that a failure to produce a valid work permit within paragraph 4(2)(b) may render an applicant an illegal entrant if he produces, instead, a document of the kind in question here, which wrongly persuades the immigration officer to grant leave to enter.

As regards Mr Blake's other two points, I do not understand the reasoning of Megaw LJ to place any emphasis on the particular status of the third party whose fraud procured an illegal entry. It is quite true that he uses the word "agent"; it is also true, on the facts of that case, that the false passport had been produced by the applicant's husband, who may, in a sense at least, be regarded as an agent. It may also be the case, though I apprehend Mr Shaw for the Home Office would not accept it, that the @2000 in the case of Chan was paid to an agent, in some sense, of the applicant, though it is fair to say that there was no evidence that that money actually found its way into the hands of the dismissed official who produced the work permit. At all events I am content to assume on the facts in Chan that there is a sense in which the fraudulent or false permits had been produced, or at any rate provided, to the applicant by an agent of his. Nevertheless, it is impossible in my judgment to treat the reasoning in Chan as capable only of application in a case where, on the facts, the person who manufactures or produces the false work permit is in some sense an agent for the applicant for entry; nor can I see any basis, within the statutory purposes of the Immigration Act of 1971, for making any such distinction between an agent case and any other third party case. The thrust of the reasoning in Chan is that if an entry has been procured through false documentation produced in the medium of an examination to which paragraph 4(2)(b) applies, then the person having the benefit of that entry has not been given leave in accordance with the Act, and has entered the United Kingdom in breach of the immigration laws.

Taking section 3(1) and section 33(1) together, I see nothing in those provisions to point to any putative importance of a distinction between a case where the deception or other breach is practised by an agent and one where it is not. For those reasons, Mr Blake's submissions must fail and these applications fall to be dismissed.

DISPOSITION:

Applications dismissed

SOLICITORS:

E Edward & Son, East Ham; Treasury Solicitor