R v. Secretary of State for the Home Department, Ex parte Kwadqo Saffu-Mensah
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 13 July 1990 |
| Citation / Document Symbol | [1991] Imm AR 43 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Kwadqo Saffu-Mensah, [1991] Imm AR 43, United Kingdom: High Court (England and Wales), 13 July 1990, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6a424.html [accessed 3 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE KWADWO SAFFU-MENSAH
Queen's Bench Division
[1991] Imm AR 43
Hearing Date: 13 July 1990
13 July 1990
Index Terms:
Illegal entrant -- deception -- deception in application for entry clearance -- whether an entry clearance officer was "a person lawfully acting in the execution of this Act" for the purposes of section 26 of the 1971 Act -- deception -- practised when interviewed by immigration officer -- extent of officer's duty -- whether he had a duty closely to question a passenger to establish his true intentions or merely the power to do so. Immigration Act 1971 ss 3(2), 26(1)(c), sch 2 para 2: HC 169 paras 10, 11,13.
Held:
The applicant for judicial review challenged the decision of the Secretary of State to treat him as an illegal entrant, on the basis of deception which it was alleged he had practised both when applying for entry clearance and to the immigration officer on arrival. The applicant was a citizen of Ghana. He had been a student in the United Kingdom for some years from 1965 and had then secured indefinite leave. While in the United Kingdom, he married. In 1977 he returned to Ghana. There he married for a second time. In 1986 he applied for entry clearance to come to the United Kingdom as a visitor: it was subsequently established that he had at all material times intended to stay in the United Kingdom permanently and, if possible, with his first wife. Those intentions were concealed from the entry clearance officer and the application form contained significant inaccuracies, including his first wife being given her maiden name and described as 'cousin'. On arrival in the United Kingdom he asserted he was not closely questioned by the immigration officer but was given leave to enter for six months. Before the court it was suggested that an entry clearance office was not a "person lawfully acting in the execution of this Act" within the meaning of s 26(1)(c) of the 1971 Act. It was further argued that under the second schedule to the Act the immigration officer had a duty closely to question a passenger to establish his true intentions. Held: 1. There was no doubt that an entry clearance officer was "a person lawfully acting in execution of the Act" for the purposes of s 26(1)(c) of the 1971 Act. 2. The second paragraph of schedule 2 of the Act imposed no duty on an immigration officer, it merely gave him a power. 3. Applying the test in Khawaja to the facts, there had been material deception before both the entry clearance officer and the immigration officer. 4. Moreover, following Patel and in the events which had happened, the mere presentation of his passport with the entry clearance certificate in it, constituted a false representation of the applicant's intention. 5. The application failed.Cases referred to in the Judgment:
Khawaja v Secretary of State for the Home Department [1984] AC 74: [1983] 1 All ER 765: [1982] Imm AR 139. Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] 2 WLR 606: [1987] Imm AR 250. Dhirubhai Gordhanbhai Patel v Secretary of State for the Home Department [1986] Imm AR 515.Counsel:
J Deve for the applicant; J Burnett for the respondent PANEL: Webster JJudgment One:
WEBSTER J: This is an application by Kwadwo Saffu-Mensah to quash a notice which was incorrectly dated 11 April 1989, subsequently corrected to 12 April, to the applicant notifying him that he was an illegal entrant and therefore liable to be detained. The relevant statutory provision is that contained in section 26(1)(c) of the Immigration Act 1971, which provides: "A person shall be guilty of an offence . . . if, on any such examination [which is examination under the schedule to the Act] or otherwise 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." It is the respondent's allegation that the applicant made two false representations which fall within that subsection: first, on 25 September 1989 when he applied for a visa from the entry clearance officer in Accra to enter this country as a visitor; and secondly on 6 October 1986, on examination by an immigration officer, when he was seeking entry also as a visitor. In short it is the respondent's case that the applicant always intended to remain here permanently and accordingly each of those two representations were false, and known by the applicant to be false. The question has been tentatively raised whether an entry clearance officer is a person lawfully acting in the execution of this Act for the purposes of section 26(1)(c). HC 169 is made pursuant to the powers conferred by section 3(2) of the Act which contains in rules 10 and 11 express references to entry clearance officers and their functions. I have no doubt in holding that an entry clearance officer is a person lawfully acting in the execution of the Act for the purposes of section 26(1)(c). The test which I have to apply on this application, so far as it concerns the correctness of the respondent's decision on the facts, is that described in Khawaja v Secretary of State for the Home Department [1983] 1 All ER, 765, sufficiently set out in the headnote on page 766 in these terms: "Where an executive officer's power to make a decision which would restrict or take away a subject's liberty was dependent on the existence of certain facts the court was not limited merely to inquiring whether the executive officer had reasonable grounds for believing that those precedent facts existed when he acted. Instead the court had to be satisfied on the civil standard of proof to a high degree of probability that those facts did in fact exist at the time the power was exercised". The history of the matter is quite long, but I will go through it. The applicant is Ghanaian and has always held a Ghanaian passport. He first came to the United Kingdom in 1965 as a student and took a course in accounting. In March 1971 he was granted indefinite leave to remain. In September 1973 a Miss Comfort Yoboh, who later became the applicant's first wife, was given leave to enter as a student. In 1974 the applicant and Miss Yoboh began to co-habit and on 12 March 1976 he married her. On 19 January 1977 she was given indefinite leave to remain. In August 1977 the applicant returned to Ghana and stayed there for about nine years. He has said that he returned to Ghana in order to build, or arrange for the building of, a house for his elderly mother. In September 1978 his wife, Mrs Saffu-Mensah, applied for entry clearance for her three children by a previous marriage who were still at that time living in Ghana. That entry clearance was granted and the children joined their mother in this country in 1979. In 1980 the applicant made a second marriage to a girl named Rose in Ghana. On 25 September 1986 the applicant applied for and obtained a visitor's visa to come to the United Kingdom. As to his second marriage the applicant wrote, some time in June 1987 in response to enquiries from the Home Office to provide the particulars of that marriage, that Rose Suffu-Mensah was his second wife and that the marriage was still subsisting for the children's sake. He said that the marriage was arranged in Ghana by the head of his family, according to Ghanaian/Ashanti custom, and that his real wife (Miss Comfort Yoboh) had three children by her first marriage before he, the applicant, married her in 1976. However, subsequently medical evidence proved that she could not bear his children and as his family could not tolerate his going through life without any children, the second marriage was arranged in Ghana. According to the applicant's affidavit he applied for and obtained a visitor's visa in September 1986 in order for him to come to England. He said that he had written to his first wife informing her of his plans to visit England and, if possible, to see her, but he did not apply for a visa to join his wife because he did not know whether she had another man in her life since he had left for Ghana. He was not sure whether she would accept him back because, he says, "of my association with another woman in Ghana, which has come to an end". His form of application for that visa is before the court and there are a number of aspects about it to which I shall draw attention. First of all, he gives as his date of birth, 30 September 1942. In fact his date of birth is 30 September 1940. At a later interview, to which I shall refer in more detail later in this judgment, on 2 April 1988 the applicant was asked by the interviewing officer, Mr Moore, about that error. Mr Moore in his affidavit says: "I then pointed out to the Applicant that his year of birth, so far as the Home Office's records were concerned, had always been 1940, and yet his current passport showed his year of birth as 1942. I asked him to explain this. He said the Issuing Officer in Ghana must have made a mistake, and he confirmed that 1940 was the correct year of his birth. I put it to the Applicant that he had take a couple of years off his age in order to confuse anyone who was checking his immigration history. He denied that this was the case." This demonstrates that it was no mistake on the part of the issuing officer in Ghana that had led to this error, but that it was part of the contents of his own application form, for whatever may have been the reason for putting an erroneous date. Paragraph 10 of the form asks for "Particulars of any dependents included in your passport who are to accompany you." In answer to that question the applicant wrote "Rose Suffu-Mensah, Ghanaian Housewife". He made no mention of his first wife who later in correspondence he referred to as his real wife. In evidence he said that he thought that he only needed to give particulars of his family in Ghana; but the question in the form is quite clearly unlimited. Paragraph 15 asks: "What is the reason for your journey to the United Kingdom"? His answer was "Visit". As will be seen later in this judgment, he later admitted in interview that when he made this application it was his intention not to come here as a visitor, but to return here to live with his first wife on a permanent basis. Finally paragraph 23 asks: "Give the full name and address of the person(s) in the United Kingdom you wish to join." He named two, the second of whom was Miss Comfort Yoboh. He gives the address and indicates "cousin". That answer therefore contained two inaccuracies or misrepresentations. He described the lady who had been Miss Comfort Yoboh as Miss Comfort Yoboh, not as Mrs Suffu-Mensah (who she was); and he described her as his cousin and not as his first wife (which she was). This form contained a declaration that the information given was true and correct and it was signed by the applicant. I am assuming for the purposes of this judgment that in 1986 it was not necessary for a Ghanaian to obtain an entry permit before arriving in the United Kingdom and that he could have applied for leave from an immigration officer on arrival here. I am satisfied from the evidence that if he had applied for entry on arrival and had told an immigration officer the true facts, that immigration officer would have set aside the entry clearance pursuant to his powers under paragraph 13 of HC 169. He then would either have refused entry outright or perhaps refused entry while further enquiries were made, perhaps giving limited leave to enter. If entry had been refused the applicant could have applied to an adjudicator while in this country. If that had been done or if he had been given limited leave to enter and the Home Office had made further enquiries, and then made their decision, there is no knowing what either the adjudicator or the Home Office would have decided. In my judgment, in any event, that is irrelevant and I rely (without feeling the need to cite it) on the passage of the speech of Lord Bridge in Bugdaycay [1987] 2 WLR, 613-614 citing with approval part of the judgment of Neill LJ in the court below. Similarly if the applicant had disclosed the true facts on making his application for a visa in Ghana, the evidence leaves me in no doubt but that no entry clearance would then be given. It would either have been refused outright or consideration would have been given to grant entry only after further enquiries had been made. In my view it is equally irrelevant to speculate or to attempt to make findings about what the result of those enquiries would have been. On 6 October 1986 the applicant returned to the United Kingdom and was granted leave to enter for six months. To a certain extent there has been an issue about what was said between the applicant and the immigration officer when he was examined on arrival. In his original affidavit he said that when he arrived the immigration officer who saw him asked him about the money he had brought, that he was not asked any other questions, but that he was then granted leave to enter for six months. At one stage in the interviews which occurred later in 1988 he was saying virtually the same thing, namely that the immigration officer simply looked at the visa stamped on his passport and said, "You must be a visitor for six months". When it was put to him on that occasion that the immigration officer must have asked him how long he meant to stay he said that he could not remember what had been said. The immigration officer in question, Mr Bennett, swore an affidavit in which he said, "I am surprised he cannot remember what was said". He said that it is his invariable practice to ask a passenger, subject to immigration control who is asking leave to enter, the purpose of the visit, the intended duration of the stay, whether a ticket for departure has been purchased, how much money has been brought into the United Kingdom. He would only grant leave if he was satisfied that the passenger was genuinely seeking entry for the period as stated and that that passenger intended to leave the United Kingdom at the conclusion of his stay and that the passenger had neither made false representations nor failed to disclose material facts for the purpose of obtaining his entry clearance. He goes on to say: "In granting the applicant leave to enter for six months . . . I must have been satisfied that he was a genuine visitor to the United Kingdom." Had he been aware that at that time he had obtained his visitor's visa he had made false representations to remain in the United Kingdom, he would have concluded that the entry clearance should have set aside according to paragraph 13 of HC 169 and he would then have refused the applicant leave. Mr Deve also sought to argue in this context that the immigration officer had a duty to examine the applicant and in effect cross-examine him in such a way as would have revealed the true facts. In support of that submission he sought to rely on the provisions of paragraph 2 of the second schedule to the Act. That submission, in my view, is quite misconceived. Those provisions confer a power, they do not create a duty. Returning to the applicant's account of what was said on arrival, I did mention at one stage he said that he was not asked how long he intended to stay or that he could not remember what was said. At a later interview he said that the immigration officer had asked him how long he would be here and that he had replied "six months". At no stage during his interview did he say that he had changed his mind in that he had altered his intention which, in one of the interviews, he admitted he had when applying for the visa in Ghana to stay here permanently -- although he had said once or possibly twice that he did not know whether he would be able to stay here permanently because he did not know how he would be received by his first wife. Indeed, according to his original affidavit, he said: "Having arrived in the country, I first stayed with a friend in London for two to three weeks. I arranged to contact my wife . . . I went to her home to see her . . . and spent a lot of time talking together about our separation. She decided to have me back". Since then they have lived together at her home. Some time later, on 23 January 1988, the applicant was arrested on charges of obtaining money by false pretences. He was in custody for three weeks before being released on bail. That is not material to the issue I have to consider, although it is part of the history. It may be that it was partly because of that fact that the Home Office started to make further enquiries into the circumstances of the applicant. In April 1988 the applicant's wife was interviewed once and I need not consider what was said at that interview. The applicant himself was interviewed three times. The first interview of the applicant by Mr Moore occurred on 1 April 1988; and Mr Moore has sworn an affidavit, as I have already indicated. During the interview with Mr Moore one of the things which was said was this: "I asked him if he saw his future with Comfort in the United Kingdom or with Rose and his children in Ghana. He said Rose was not educated, she was not socially equal to him and could not speak English. He said he had always intended to return to his 'official' wife Mrs Saffu-Mensah and it was with her that he saw his future. I asked Mr Saffu-Mensah if he had told Comfort about Rose and what her reaction was. He said she was very upset and she had talked of divorce but she had now forgiven him. I asked him what sort of story he had told Rose about his departure from Ghana to the United Kingdom. He said he told her he was going for a visit and would be coming back. I put it to him that he had lied to Rose and that he had no intention of returning to her in Ghana. He said that this was so." The record of this interview made by Mr Moore a few days later on 8 April was substantially to the same effect as that evidence and in virtually the same words, although that record does say in addition: "I asked him what sort of reception she [that is to say, his first wife] gave him when he returned from Ghana. He said it was very cool and it took him a week to talk her round to accepting him again." The applicant, in the second affidavit which he has sworn in these proceedings, admitted to Mr Moore that he had lied to Rose about the purpose of his visit to the United Kingdom. He says that he told Mr Moore that he obtained a visitor's visa because he was not sure Comfort (that is to say, his first wife) would accept him after a separation of nine years. The second interview was held on the next day, 2 April. Mr Moore's evidence about the interview includes on this day the following passages: "I asked him therefore what he had put on the forms in answer to the same question. [That is to say the forms he presented when applying for entry clearance.] He said he thought his life was too complicated to put everything down so he decided to 'short cut the system' by simply describing himself as a visitor." Later on in the same interview he said: "I put it to him that he could hardly declare Comfort when he had presented himself . . . as a married man with a wife and 2 children in Ghana. He said this was true and might have caused confusion over his circumstances . . . I put to him that he had deceived the Entry Clearance Officer in Accra. He said he did not mean to deceive anyone." The record of that interview, made soon after by Mr Moore on 8 April, is, again, substantially to the same effect, except there is a slight difference in emphasis. He said: "He had deceived everyone, he had deceived Comfort over his marriage to Rose, he had deceived Rose about his journey to the United Kingdom to join Comfort, he had deceived the Entry Clearance Office in Accra and the Immigration Officer at Gatwick. He refused to comment on those observations." According to another passage of Mr Moore's evidence about that interview: "The applicant told me that when he applied for his entry clearance in Accra, and when he was answering the Immigration Officer's questions at Gatwick on 6 October 1986, it had never been his intention to return to Ghana after a period of time here as a visitor. He said he had never intended to go back to Ghana since he was rejoining his wife, Mrs Saffu-Mensah, in the United Kingdom. I put it to him that his admitted deception of officials rendered him liable to consideration as an illegal entrant, and I asked him to comment. He said he had nothing to say about that." The applicant deals with these passages from Mr Moore's evidence about this interview in his further affidavit. He says that when it was put to him that he had obtained a visa by deception he denied it. He goes on to say: "I said at the time of the application I had not seen my wife for a long time and therefore I was not certain whether she could agree to let me live with her permanently. I also told the officer that I needed time to discuss the matter with her properly and if she agreed we would then apply to the Home Office. Having heard my reasons for the application Mr Moore told me that I was trying to "short cut the system". I told him that I did not know the "system"." The reference in that passage throughout is to Mr Moore, not the immigration officer; but perhaps the most important aspect of that evidence is that the applicant is there saying that it was Mr Moore who used the expression "short cut the system" rather than the applicant himself. In a later passage in the same affidavit the applicant says that he told Mr Moore that he had truthfully answered all the questions put to him by the officer who saw him on arrival. The third interview is on 5 April. At the outset of this interview Mr Moore cautioned the applicant and the interview was conducted by means of questions and answers which were recorded and signed by the applicant. I shall refer to some of those questions and answers. The first question was this: "(Q) At the time you were applying for your entry clearance in Accra was it your intention to return to your legal wife Comfort in the United Kingdom on a permanent basis? (A) Yes, it was. (Q) Why therefore did you make application to the entry clearance officer as a visitor and not as the husband of your legal wife Comfort? (A) It would have taken time and it was my intention to make an application in the United Kingdom once I got here." Later on in the interview there was the following questions and answers: "(Q) On 6 October 1986 you presented yourself at Gatwick Airport and handed the immigration officer your passport containing the visitor's entry clearance. Thus leading him to believe that you were seeking entry as a visitor before any questions had been asked. Is this so? (A) Yes. (Q) What questions were you asked by the immigration officer and what did you answer in reply? (A) The immigration officer opened my passport and looked at the EC and said how long will you be here and I replied for six months. He then asked how much money I had on me." He was told. "(Q) Would you agree that you deceived both the entry clearance officer in Accra and the immigration office at Gatwick in order to facilitate your return to the United Kingdom with the minimum of fuss and to use your own words 'short cut the system'. (A) I did not know the system. I am rectifying what is wrong by applying to the Home Office." All those passages are dealt with by Mr Moore in paragraph 15 of his affidavit where he sets out those questions and answers more or less verbatim. The applicant in his further affidavit, to which I have already referred, takes issue with a number of passages from the affidavit of Mr Moore; but he does not deal or take issue with anything in that paragraph of Mr Moore's affidavit. In January 1989 the applicant was convicted of the offences with which he had been charged and he was fined. It is part of his case that Mr Moore gave evidence (as he did at the trial) and that when he gave evidence, in answer to a question by the judge, he said: "I had been away from the UK for more than two years my application as a returning resident could be favourably considered by the Home Office because my wife is settled in the UK. It may also be relevant to mention that the officer had my record with him in court and said nothing about the way I entered the country." The transcript of that evidence shows that Mr Moore said nothing to the effect that the applicant's application as a returning resident would be favourably considered by the Home Office. What he did say, and what the applicant may have misconstrued in the circumstances, was that a man who had been given indefinite leave to enter, had settled, had then left the country and had returned to it within two years would be admitted for settlement if the Home Office was satisfied that he had a properly subsisting marriage in this country. Of course this applicant has been out of the country for nine years; and it is quite apparent that in that passage from the transcript of Mr Moore's evidence at the trial he was referring not to the applicant but to a hypothetical person who had returned to the country within two years. Mr Deve also relies upon the fact, which is mentioned shortly in that paragraph of evidence which I have just quoted, that the prosecution did not elicit from Mr Moore the evidence that the applicant was under investigation for a possible offence under section 26, and that it is to be inferred from the failure to mention that fact that the Home Office were considering this case favourably. I think that is how Mr Deve put his case. It would of course have been wholly improper for that evidence to have been given: any such evidence would be highly prejudicial. He did not give evidence after conviction when the judge was considering sentence. I am satisfied there is nothing in these points. The final interview was on 12 April 1989, immediately before the notice which he seeks to challenge was served. Mr Moore' evidence about this interview is this: "During the interview on 12 April 1989 I reminded the Applicant of his interview under caution on 5 April 1988. I refreshed his memory as to the questions he had been asked and of the answers he had given on that occasion. The applicant agreed that the notes of interview taken on 5 April 1988 were a true and accurate record of the questions I had asked him and of the answers he had given. I asked the Applicant if there was anything he wished to add to or subtract from those notes. He simply added that he was sorry about the method of entry which he had used, and said he had not realized that he had committed an offence. I reminded him of his original explanation of the method of entry, which was, in his words, 'to short cut the system'." TThe applicant deals with this passage of Mr Moore's evidence in his further affidavit by denying he used the phrase "short cut the system". He says that it was Mr Moore who used it. And, again, he denies that he practised any deception in order to obtain a visa or that he had deceived the immigration officer at Gatwick. At the conclusion of this interview Mr Moore was authorized by Mr Sharman, the chief immigration officer, to serve the notice now under challenge. Little remains of the history. On 27 June 1989 Rose J gave leave to make this application for judicial review. On 17 August 1989 Mrs Erwteman of the immigration department of the Home Office swore an affidavit in which she said: "Since the date on which the Applicant was granted leave to move for judicial review of the decision to treat him as an illegal entrant, the Secretary of State for the Home Department has reviewed the Applicant's case. Despite the presence of a wife and two children in Ghana, the Applicant's intention in returning to the United Kingdom in October 1986 was to settle with Mrs Comfort Saffu-Mensah, whom he had married in March 1976, and in these circumstances the Secretary of State can see no reason for reversing the decision of the immigration officer to treat the Applicant as an illegal entrant." Only two central questions remain after this rather long recital of the history of the matter, in the course of which I have considered other more peripheral submissions. First, was there, as had been alleged in the grounds of this application but not argued, any failure to comply with the rules of natural justice on the part of any of the officials and, secondly, should the notice be set aside by the application of the test in Khawaja? I can see no possible argument to support the contention that there was any failure to comply with the rules of natural justice. As I have said, Mr Deve has not argued that contention. On the second interview held on 2 April 1988 Mr Moore put the case against the applicant to him fairly. At the third interview held on 5 April he cautioned the applicant, and the questions and answers were recorded and signed by the applicant. At the final interview held on 12 April 1989 Mr Moore gave the applicant the opportunity to confirm the accuracy of that record, which he did, and to add or subtract anything that he wished to. As to whether the evidence satisfied the test of Khawaja, I am quite satisfied, as a matter of high probability, if not near certainty, that the applicant knowingly made false representations both to the entry clearance officer in Accra and to the immigration officer in England on his arrival here. The false representation made to the entry clearance officer in Accra is apparent from those passages contained in his application which I have noted, particularly the reference to his second wife without mentioning his first wife, the reference to the lady who was in fact his first wife as a spinster cousin. The statement that the reason for his journey was to visit was also false: the evidence shows clearly that it was his intention to return to live permanently with his first wife if she would have him. As to the representations to the immigration officer: even if nothing had been done or said, a mere presentation by the applicant to the immigration officer of the passport containing the permission to enter as a visitor would have constituted a false representation of his intention. See the case of Patel [1986] Imm AR 515. I am in any event quite satisfied that the applicant admitted to Mr Moore, in that signed recorded interview, that the immigration officer had asked him how long he intended to stay and that he replied "Six months ", although in his affidavit in support of his application he denied that any such thing was said. I also have no doubt at all that each of those false representations was material and for those reasons I dismiss this application.DISPOSITION:
Application dismissedSOLICITORS:
Hedworths, Tyne & Wear; Treasury SolicitorCopyright notice: Crown Copyright
