Adeniya Adesina v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 1988 |
| Date | 12 May 1988 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Neill, Balcombe, Staughton LJJ
A Riza for the appellant
J Laws for the respondent
Cases referred to in the judgments:
Khawaja v Secretary of State for the Home DepartmentELR [1982] Imm AR 139: [1984] 1 AC 74.
R v Secretary of State for the Home Department ex parte Awa (unreported, QBD, 11 March 1983).
Bugdaycay v Secretary of State for the Home DepartmentELR [1987] Imm AR 250: [1987] AC 514.
R v Secretary of State for the Home Department ex parte A N A Adesina (DC) [1988] Imm AR 288.
Illegal entrant entry by deception visitor who always intended to study whether properly treated as illegal entrant whether deception material. Immigration Act 1971 ss. 3(1), 26(1)(c), 33(1): HC 169 paras. 17, 20, 2125.
Student would-be student sought and granted leave to enter as visitor no indication he intended to study, which was his real intention whether he could rely on the would-be student provisions in the rules. HC 169 para 24.
Appeal from the Divisional Court. The appellant was a young Nigerian who arrived in the United Kingdom without entry clearance and sought leave to enter for two weeks as a visitor, to assist his cousin who was to receive medical care.
He was given leave to enter as a visitor for a month. He then applied for variation of leave as a student. He admitted on subsequent enquiry that he had always intended to study. The Secretary of State considered him to be an illegal entrant and decided to remove him. On application for judicial review it was argued that under the provisions of paragraph 24 of HC 169 he should have been regarded as a would-be student. Counsel sought to distinguish Bugdaycay where the concealed intention was to secure settlement, from the present case in which the undisclosed intention to study involved no more than a grant of limited leave which was in essence the same as that granted to the appellant as a visitor, and his intention as to remaining in the United Kingdom was of the same kind or nature as that of any other visitor.
Held:
1. Following Bugdaycay it was sufficient for the deception to be material. It was irrelevant whether, if the truth had been told, leave on some other basis might have been grantedalthough on the facts of the case it was clear that leave to enter as a student would have been refused.
2. The distinction counsel sought to draw between the present case and Bugdaycay was a distinction without a difference which does not go to the main point of Bugdaycay.
3. It followed that in the circumstances of the case, no reliance could be placed on the provisions of paragraph 24 of HC 169.
Neill LJ: I will ask Balcombe LJ to give the first judgment.
Balcombe LJ: This is an appeal from the Divisional Court, consisting of Glidewell LJ and French J, who on 12 February this year refused the appellant's application for judicial review to quash the decision of the Immigration Officer made on 2 November 1986 that he was an illegal entrant.
I take the facts from the judgment below in the following terms.
The applicant is a citizen of Nigeria and is now 25 years old. He arrived at Heathrow Airport on 19 August 1986. He told the immigration officer that he wished to enter the United Kingdom and stay for a period of 14 days only in order to provide assistance to his cousin who had come here for medical treatment. He said that his cousin was here for an artifical limb replacement and needed assistance, that the cousin always had his treatment in the United Kingdom and that the cousin had bought his, the applicant's airline ticket.
The immigration officer checked that the cousin was having treatment here and was satisfied that this was true. The applicant was given leave to enter the United Kingdom and to stay for one month. That leave to enter was given on the basis that he was entering as a visitor.
Just before the month expired, on 17 September 1986, the Home Office received a letter from the London School of International Business which indicated that the applicant had enrolled for a graduate diploma course in international marketing. The Home Office treated that as being an application to them to consider whether to permit the applicant to remain in this country in order to pursue that course of study.
Before any decision had been made on that application, in the early hours of the morning of 2 November 1986 Mr Adesina was travelling with another young man in a car which was stopped by the police for some alleged traffic offence. Both were interviewed. The police were then caused to have doubts about the immigration status of both of them. Accordingly, an immigration officer, Mr Smith, attended the police station later in the morning. He interviewed first Mr Adesina and then later the other young man. The interview included a series of questions asked by Mr Smith which he recorded as he was asking the questions. He also recorded the answers given by Mr Adesina.
I will read some of the questions and answers: (Q) When did you come to the United Kingdom? (A) 19 August 1986. (Q) Why did you come here? (A) For study. (Q) What did you want to study? (A) Accountancy. (Q) How long did you expect this to take you? (A) Together this would take me some 4 years plus. I break off to say that that somewhat cryptic observation is a reference to the fact that the combination of the marketing course on which he was about to embark and the accountancy course would take something over four years. The notes go on: (Q) How much money did you bring with you? (A) 750. (Q) How did you expect to finance your studies here? (A) I am expecting money from home. The money will be sent twice a year via the central bank.
A little further on this passage occurs: (Q) When you arrived at Heathrow the immigration officer asked you how long you would stay. What did you say? (A) I said that I would not stay longer than a period of a month. (Q) What did you say you were doing here? (A) To assist my uncle. (Q) Why did you not tell the immigration officer you wanted to study here? (A) That is what my uncle asked me to tell. (Q) Did your uncle explain why you had to say that? (A) No. (Q) Did you know that what your uncle told you to say was not accurate? (A) I considered that it was not accurate as you said. He was asked to read through this and to alter it if he wished to do so. He indicated that he did not wish to do so. He initialled every answer and he signed the last sheet of the record of interview.
In the light of those answers the immigration officer, on behalf of the Home Secretary, concluded that on entry to the United Kingdom the applicant had arrived with the intention to study and that he had made false representations in order to obtain entry and was therefore an illegal entrant.
There is no dispute between counsel that there was sufficient material before the Home Secretary to justify his conclusion that on arrival the applicant did intend to study. As to the record of interview, Mr Warr, who represents the applicant, said: I do not challenge the accuracy of the interview. I accept that the questions and answers were accurately recorded.
That is the end of the quotation from the judgment at first instance.
The following propositions of law are relevant in this case. First, if a person obtains leave to enter the United Kingdom by means of a material deception he is an illegal entrant. I derive that proposition from the combined effect of sections 3(1), 26(l)(c) and 33(1) of the Immigration Act 1971 and the decision of the House of Lords in R v Home Secretary, ex parte KhawajaELR [1984] AC 74. I will read a short passage from the speech of Lord Bridge at page 118D:
My Lords, in my opinion, the question 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 enterin other words if, but for the fraud, leave to enter would not have been grantedthen 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.
The second proposition of law, which is common ground, is that the onus is on the Home Secretary to prove that leave to enter has been obtained by deception. That proposition is also derived from Khawaja.
The third proposition is that a person who obtains leave to enter by misrepresenting the facts is an illegal entrant if, had he told the truth, he would not have been granted leave to enter in the capacity in which leave was granted. It is irrelevant that had he told the truth he might have obtained leave to enter in some other capacity. The authority for that last proposition is the later case in the House of Lords, R v Home Secretary, ex parte BugdaycayELR [1987] AC 514. Again I propose to read only a short quotation, also from the speech of Lord Bridge. At page 524D he is referring to the decision of this court in Bugdaycay in which the leading judgment was given by my Lord, Neill LJ:
After setting out the argument and the citations from authority on which this submission relies for support, Neill LJ disposed of it in the following paragraphs:
In my judgment it is impermissible to extend the concept of material facts so as to allow an intending entrant to seek leave to enter for a particular purpose on the basis of a statement of particular facts and then later, on admitting that the purpose had been misrepresented and the facts had been misstated, to...
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