Tejpartap Singh Rehal v. Secretary of State for the Home Department
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 22 July 1989 |
| Citation / Document Symbol | [1989] Imm AR 576 |
| Cite as | Tejpartap Singh Rehal v. Secretary of State for the Home Department, [1989] Imm AR 576, United Kingdom: Court of Appeal (England and Wales), 22 July 1989, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b61a14.html [accessed 3 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Tejpartap Singh Rehal v Secretary of State for the Home Department
Court of Appeal (Civil Division)
[1989] Imm AR 576
Hearing Date: 22 July 1989
22 July 1989
Index Terms:
Indefinite leave -- British overseas citizen subject to immigration control -- admitted to United Kingdom without leave to stamp endorsed on passport -- immigration officer mistakenly thought appellant was British citizen not subject to immigration control -- no deception by appellant -- whether appellant illegal entrant -- whether appellant should be deemed to have been given indefinite leave to enter -- whether the provisions of para 6 of schedule 2 of the 1971 Act apply only to delays in decision making or extend to mistakes. Immigration Act 1971 ss 3, 33(1), sch 2 para 6.
Held:
Appeal from McCowan J who had refused leave to move for judicial review. The appellant was a British overseas citizen who on arrival in the United Kingdom presented his passport which clearly showed his status, to the immigration officer: the immigration officer mistakenly believing him to be a British citizen who did not require leave to enter, waved him through immigration control and put no leave stamp on his passport. Subsequently the Secretary of State treated him as an illegal entrant and directed his removal from the United Kingdom. Before the court counsel argued that under the provisions of paragraph 6 of the second schedule to the Immigration Act 1971 the appellant should be deemed to have been granted indefinite leave. For the Secretary of State it was argued that those provisions did not extend to mistakes by the responsible official: they were limited to the consequences of indecision. Held: 1. The wording of paragraph 6 of the second schedule was unambiguous. The language 'is to be given' is purely prospective and looks forward to a decision not yet made or notified. 2. The sub-paragraph is limited to cases where a prospective or uncommunicated decision is either that an applicant is to be given limited leave to enter or is to be refused leave to enter. It has no application to any other case. 3. Bingham LJ and Farquharson LJ expressed reservations about whether, in the events which had happened, there had been any examination within the meaning of the relevant paragraph: the point not being taken by the respondent, the court came to no conclusion on it.Cases referred to in the Judgment:
R v Secretary of State for the Home Department ex parte Malik (unreported QBD, 2 October 1987). R v Secretary of State for the Home Department ex parte Catherine Mokuolu and Aina Ogunbiyi (unreported, QBD, 19 November 1987). Catherine Mokuolo and Aina Ogunbiyi v Secretary of State for the Home Depratment (CA) [1989] Imm AR 51. R v Secretary of State for the Home Department ex parte Thirukumar and ors [1989] Imm AR 402.Counsel:
I Macdonald QC for the appellant; D Pannick for the respondent PANEL: Nicholls, Bingham, Farquharson LJJJudgment One:
BINGHAM LJ: This matter came before the court this morning as a renewed application for leave to apply for judicial review following the refusal of leave by McCowan J on 18 May, 1989 after an oral hearing. Having heard the opening submissions of Mr Macdonald for the applicant, the court resolved to grant leave to more and also determined to hear the application. Accordingly, the matter is now one in which leave has been given, and the case comes before us as an issue of substance. The applicant is Mr Tejpartap Singh Rehal, a British overseas citizen, admittedly subject to immigration control. He was born in Kenya on 21 August 1968, so that he is now very nearly 21. He seeks to quash a decision of the chief immigration officer at the East Midlands Airport made on 7 March, 1989 to the effect that the applicant was an illegal entrant. The applicant also seeks to quash a decision of the Home Office on 23 March, 1989 to remove him to Kenya. Although there are these two decisions which are challenged, they raise no separate issues. The facts giving rise to the application are extremely short. On 9 January, 1987 the applicant entered the United Kingdom at East Midlands Airport. He was coming here to visit his sister and brother-in-law who live in Leicestershire, and he held a return ticket to Nairobi. When he reached immigration control, he was asked to hand his passport to the immigration officer, and did so. It was a British passport showing the applicant to be a British overseas citizen. The immigration officer looked at the passport. He asked no questions. He made no stamp upon it, and simply waved the applicant onwards. It seems clear that the immigration officer mistakenly thought, contrary to the fact, that the applicant was a full British citizen. It is important to emphasise that the applicant himself was guilty of no misrepresentation or deception of any kind whatever. Having been admitted in that manner, the applicant thought or, in any event, hoped that he would be free to stay on in this country, and he embarked on a course of education. It seems, however, that he may have had some qualms as to his immigration status, because he did in the course of 1988 consult solicitors who wrote a letter to the Home Office on 6 June, 1988 attempting to clarify the matter and hoping to obtain confirmation that the applicant had indefinite leave to remain. That letter prompted a course of inquiry and interview of the applicant by immigration officers, leading to a final interview on 7 March of this year. It was at the end of that interview that the applicant was served with notice that he was an illegal entrant and that removal directions would shortly be given. He was given leave to remain temporarily. On 23 March those notices were followed up by an indication that the applicant would be removed to Kenya. It is common ground in this case that the applicant, by virtue of section 3 of the Immigration Act 1971, required leave to enter. It is also common ground that he did not in fact obtain express leave to enter. He was, therefore, an illegal entrant within the meaning of that expression as defined in section 33(1) of the 1971 Immigration Act, and so liable to removal, unless, under the Act, leave to enter is deemed to have been given. It is the cardinal submission of Mr Macdonald on the applicant's behalf that in the circumstances and on a proper construction of the Act deemed leave is to be held to have been given. That submission rests, first, on paragraph 2 of schedule 2 of the 1971 Act, which is in these terms: "2(1) An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purpose of determining -- (a) whether any of them is or is not a British citizen; and (b) whether, if he is not, he may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave." The remainder of paragraph 2 deals with medical examinations and provisions for further examination of an entrant, but those are not directly germane to this application. It is, therefore, plain, on reading paragraph 2(1), that immigration officers are given a power to examine persons for various specific purposes identified in the paragraph. I have myself entertained some doubts as to whether, on the extremely brief and cursory exchange which took place between the applicant and the immigration officer in the present case, there was an examination within the meaning of paragraph 2(1). Mr Macdonald, however, submits that there was an examination, and Mr Pannick for the Secretary of State has unreservedly accepted that there was indeed an examination for the purposes of that paragraph. There is, therefore, no issue as to whether there was an examination within the meaning of paragraph 2(1), and I say no more about it. The next relevant paragraph is paragraph 6, the opening sub-paragraphs of which are to this effect: "(1) Subject to sub-paragraph (3) below, where a person examined by an immigration officer under sub-paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twelve hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twelve hours, he shall (if not a British citizen) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration officer shall as soon as may be give him written notice of that leave. (2) Where on a person's examination under paragraph 2 above he is given notice of leave to enter the United Kingdom, then at any time before the end of twelve hours from the conclusion of the examination he may be given a further notice in writing by an immigration officer cancelling the earlier notice and refusing him leave to enter. (3) Where in accordance with this paragraph a person is given notice refusing him leave to enter the United Kingdom, that notice may at any time be cancelled by notice in writing given him by an immigration officer; and where a person is given a notice of cancellation under this sub-paragraph, the immigration officer may at the same time give him a limited leave to enter, but in the absence of a notice giving a limited leave the notice of cancellation shall be deemed to be a notice giving him indefinite leave to enter." The issue that arises on this application was neatly and, I think, accurately stated by Mr Pannick in this way. Does schedule 2, paragraph 6(1) apply only to cases of delay in decision-making, as the Secretary of State submits, or does it extend also, as the applicant submits, to cases of mistake of decision-making? Put very shortly, Mr Macdonald's submission on behalf of the applicant was this. The applicant was, he says, a prospective entrant who required leave. He did not fall within paragraph 2(1)(a) since he was not a British citizen, nor did he fall within paragraph 2(1)(b) as a person, who, although not a British citizen, should be permitted to enter the United Kingdom without leave. If the applicant had been properly examined, submits Mr Macdonald, it would have been obvious that he was a person falling within paragraph 2(1)(c). Accordingly, Mr Macdonald argues, the language of paragraph 6(1), and in particular the words "is to be given a limited leave", should be understood as applying to persons who, if properly examined, would be found to fall within paragraph 2(1)(c). In other words, paragraph 6(1) applies not only to those who, having been examined, have been identified as falling within paragraph 2(1)(c), but also to persons who would have been so identified if properly examined. That, he submits, is this case, because, if the immgration officer had examined the applicant's passport with any care, it would have been quite clear that the applicant did fall within paragraph 2(1)(c) and was therefore a person who required leave to enter. The contrary submission, advanced on behalf of the Secretary of State, again shortly summarised, is that paragraph 6(1) is a provision which, on its language and its purpose, and on precedent, is concerned with delay in decision-making and is not concerned with the case in which a mistake has been made by the immigration officer. Mr Pannick submits that the provision requires the immigration officer, once he has concluded his examination, to make up his mind and confers the benefit of indefinite leave to enter on the applicant if the immigration officer fails to make up his mind in time. I have to say that to my mind a straightforward reading of paragraph 6 of schedule 2 compels one to the conclusion for which Mr Pannick contends. The language "is to be given" is purely prospective and, in my judgment, looks forward to a decision not yet made or notified. The sub-paragraph is limited to cases where a prospective or uncommunicated decision is either that an applicant is to be given limited leave to enter or is to be refused leave to enter. It has no application to any other case. There is, in my judgment, nothing in the language to suggest that it applies to a case where the immigration officer thinks that he has dealt with a case finally by admitting a British citizen who requires no leave and when he has no knowledge or thought of the need for any further decision. There is nothing in the language to suggest that the paragraph is directed towards the case where an applicant requires leave to enter but the immigration officer mistakenly thinks he does not. Mr Pannick's submission, as I think, gains some support from a dictum of the Master of the Rolls in the unreported, R v Secretary of State for the Home Department, ex parte Thirukumar and others, decided on 9 March, 1989, ([1989] Imm AR 402) when the Master of the Rolls said: "The 12/24 hour time limit is designed to provide a penalty for indecision and not for slothful examination. The remedy for the latter is complaint to the Immigration Office and, in the last resort, judicial review." Mr Macdonald accepts that the 12/24 time limit is designed to provide a penalty for indecision and not for slothful examination, but contends that it is not limited to that case and applies also where there has been a mistake which the immigration officer has failed to correct. For my part, I find no indication in the language of the schedule that it is directed to such a case. The best authority from the applicant's point of view, although one acknowledged by Mr Macdonald to fall somewhat short of supporting his present argument, is R v Secretary of State for the Home Office, ex parte Malik (unreported, but decided on 2 October 1987). The facts of the case were not altogether clear, but an account of what took place was given by the applicant, and, in the absence of any other evidence, the learned judge, Kennedy J, properly treated that as the factual basis upon which he should proceed. The applicant arrived at Heathrow in that case with a Zambian passport from which it was plain that he needed leave to enter, but by a mistake (it was assumed on the part of the immigration officer) he was waved through as if he did not need leave. The substantial question argued before the learned judge was whether there had been an examination under paragraph 2 of the second schedule. The Secretary of State argued, as is apparent from the submission summarised at page 8C of the transcript, that there had not in the circumtances been an examination at all. The learned judge rejected that submission. He held that there had been an examination. The present point, turning on the effect of paragraph 6 where the immigration officer has mistakenly concluded that no leave to enter was required, was not argued and was not before the judge. It was accepted, evidently on both sides, that, if there had been an examination, the applicant was entitled under paragraph 6 to indefinite leave. I think that that conclusion was wrong, but the learned judge cannot be criticised for failing to explore a matter which was not in issue before him. It is, however, plain that the decision does little to assist Mr Macdonald in any event since the present case undoubtedly turns on the proper construction of paragraph 6. We were next referred to the transcript of a case before Macpherson J on 19 November, 1987, R v Secretary of State for the Home Department, ex parte Catherine Mokuolo and Aina Ogunbiyi. They both arrived with passports showing their place of birth to be Liverpool and both the applicants genuinely believed that that had been the place where they were born. The immigration officer accepted that statement at its face value as shown in their passports and admitted them without question. Later some doubt was cast as to whether the ladies had indeed been born in Liverpool. They were unable to prove that they had. It appears from the transcript of the judgment of Macpherson J that Mr Riza, appearing for the applicants, did base an argument on paragraph 6 of the second schedule. I need not, however, read the learned judge's judgment on that argument for two reasons. First, as the judge makes plain, it was not an argument which Mr Riza advanced with any vigour, and, second, it certainly appears that the learned judge may not have been quite clear as to what the argument was. It may indeed be that Mr Riza had so little confidence in the argument that he found it almost impossible to formulate it in an intelligible manner. The case went to appeal, but the argument based on paragraph 6 was not advanced in this court at all. The Court of Appeal decision is reported in [1989] Imm AR 51, and establishes that an entrant who needs leave and enters without it, however innocently, is an illegal entrant. The decision is not, however, relevant on the present point save perhaps as showing that a point which might have availed the applicant, if it were correct, was not advanced in the Court of Appeal. Mr Macdonald sought to distinguish that case. He pointed out that because the statements in the passports showed the applicants were entitled to enter, so that the immigration officer made no error in reading the material put before him, the mistake not being evident even on a reasonable examination, those persons did not appear to fall within paragraph 2(1)(c). I do not, however, for my part think it is a helpful distinction, since the Act does not in any way distinguish between proper and improper examinations. Either an arriving passenger is examined or he is not, and here the parties are agreed that there was an examination within the meaning of paragraph 2 of the schedule. Both parties advanced arguments pointing out what the consequences would be if the opposite argument were accepted, but since for my part I find the meaning of paragraph 6 of the schedule to be clear and unambiguous, I do not think it either helpful or desirable to embark on any consideration of what the consequences would be one way or the other. Out attention has also been drawn to the fact that the provisions under consideration have been to some extent modified in the Immigration Act 1988, both by lengthening the period in which an immigration officer may make a decision and by diminishing the benefit to the entrant if he fails to do so. I do not, however, think that those changes affect the principle of the paragraph in any way. In conclusion, therefore, I find myself of the clear opinion that the argument advanced by Mr Pannick is correct. The applicant in this case acted without any personal impropriety of any kind, but he was an entrant who needed leave. He did not obtain express leave. He cannot, in my judgment, rely on paragraph 6 to show that he obtained deemed indefinite leave. He is therefore, however faultless his behaviour, an illegal entrant within the meaning of the Act, and there are, as I conclude, no grounds upon which the two decisions may be quashed. The circumstances are such that the applicant may well have a strong claim to sympathetic treatment as a result of events in Kenya both before and after his departure. But, although those matters were originally raised in the application, Mr Macdonald has not, doubtless for good reason, sought to canvass them in any way in this court. For those reasons, therefore I would dismiss this application.Judgment Two:
FARQUHARSON LJ: I agree. It is accepted that the appellant obtained entry to the United Kingdom on 9 January, 1987 without practising any sort of deception. The immigration officer, on examining his passport, mistakenly concluded that the appellant was a British citizen and not, as was the fact, a British overseas citizen notwithstanding that the passport was clearly stamped that the holder was subject to control under the Immigration Act 1971. As the appellant entered without leave, he is an illegal entrant by virtue of the provisions of section 33(1) of the Act unless, as Mr Macdonald submits on his behalf, he is deemed to have been given indefinite leave to enter (as the law then stood) under paragraph 6(1) of schedule 2. It is to be noted that schedule 2 sets out the administrative provisions as to control on entry to be followed by immigration officers when carrying out their duties under section 4. Paragraph 2 of that schedule gives immigration officers a discretion to examine persons who have arrived in the United Kingdom. Mr Macdonald tells us that in practice an examination takes place in nearly every case. Under the rule the examination is for the purpose of determining whether the person concerned is (a) British, (b) if not, whether he may enter without leave, and (c) if not, whether he should be given limited leave or refused it. In this case all that happened, apparently, was that on arrival at immigration control the appellant handed his passport to the immigration officer, who, after looking at it, returned it to him and waved him through. Plainly the appellant obtained entry because of the officer's mistake. Whether on those facts there was an examination of a person for the purpose of determining his status is something about which I have some reservations, but Mr Pannick did not take the point on behalf of the respondent, and, like my Lord, I say no more about it. Paragraph 6(1) refers to the situation where a person has been examined by an immigration officer and is to be given a limited leave to enter or to be refused leave. The thrust of its provisions is that an appropriate notice informing the examinee whether or not he is to be given limited leave must be served on him within 12 hours or he will be deemed to have indefinite leave to enter. For my part, I cannot see how that provision can be construed as any other than imposing a time limit on the immigration officer in making his decision in the cases referred to in that sub-paragraph. The present appellant does not, in my judgment, fall into either category set out in paragraph 6(1). At no stage in the admission process was he to be given leave to enter or to be refused leave. The paragraph makes no reference to persons admitted by mistake. Indeed, the provisions would not be apt in these circumstances in the nature of things, because, once he was admitted, it would be unlikely that service of the notice would be effected within the time limit laid down. Furthermore, as Mr Pannick points out, it would result in an unbalanced system of admissions to the United Kingdom if a person who is admitted by mistake stands as a result in a much more favourable fortunate position as compared with other applicants. In my judgment, the paragraph cannot bear the extension proposed by Mr Macdonald that a person, who but for the mistake of the immigration officer would have been in one of the categories to which it relates, should have the benefit of the deemed provision. For those reasons and those set out by my Lord, I too would dismiss this appeal.Judgment Three:
NICHOLLS LJ: I agree. This case raises a short but important point on the construction of paragraph 6(1) of schedule 2 to the Immigration Act 1971. Paragraph 6(1) provides that, in specified circumstances, the notice mentioned in that sub-paragraph shall be given within the stated time limit of 12 hours, now 24 hours. Deemed leave to enter is the consequence of non-service of such a notice within the stated period. In considering, therefore, the proper interpretation of the phrase, "where a person examined by an immigration officer under paragraph 2 above is to be given limited leave to enter the United Kingdom or is to be refused leave", it is relevant to note what are the contents of the required notice. What is required is a notice giving or refusing leave. That is a reference back to the preceding words, "is to be given a limited leave to enter the United Kingdom or is to be refused leave". Thus what the paragraph envisages is a state of affairs where a decision is pending on whether such leave is to be given or leave is to be refused. A notice is required communicating that decision within the time limit. If, after the conclusion of an examination by the immigration officer under paragraph 2 no such decision is pending in a particular case, then the question of a time limit for the giving of such a notice, thereby bringing matters to an end by specifying one or other of these two alternatives, is not in point. In my view the language of paragraph 6(1) admits of no doubt on this. I do not think that the language or the context of the paragraph requires or justifies the key words being given a meaning which would embrace a case where no decision is awaited but, had the immigration officer not made a mistake when examining the would-be entrant's passport, such a decision would have fallen to be made.DISPOSITION:
Appeal dismissed leave to appeal to the House of Lords refusedSOLICITORS:
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