European Roma Rights v Immigration Officer
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 10 October 2002 |
| Neutral Citation | [2002] EWHC 2249 (Admin),[2002] EWHC 1989 (Admin) |
| Docket Number | CO/4224/01,Case Number CO/4224/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2002 |
[2002] EWHC 1989 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Burton
Case Number CO/4224/2001
Lord Lester QC, Ms Dinah Rose and Mr Guy Goodwin-Gill (instructed by Liberty) for the Claimants
Ms Monica Carss-Frisk QC and Mr Michael Fordham (instructed by the Treasury Solicitor) for the Defendants
Immigration officials are stationed at entry points in the United Kingdom to enforce the Immigration Rules, contained in HC395 as amended ("the Rules"). Apart from EEA nationals, who are subject to quite separate treatment, all those who are not British citizens are not permitted to enter the United Kingdom by virtue of s3(1)(a) of the Immigration Act ("the 1971 Act") "unless given leave to do so in accordance with the provisions of, or made under,"that Act, pursuant to which the Rules are made.
Applications for such leave fall primarily into two categories:
i) Those who seek and obtain visas for entry. These are available in advance of travel (entry clearance). This applies to "visa nationals", who are primarily members of some 105 countries listed in Appendix 1 to the Rules, including Bosnia, Bulgaria, Croatia, Rumania, Russia, Slovakia, Turkey and Yugoslavia (see particularly paragraphs 24–30c of the Rules). If the passenger has obtained a visa in advance then he will be admitted, subject to the provisions of Rule 321, which provides for leave still to be refused on certain limited grounds, e.g. that the immigration officer is satisfied that the visa was obtained by misrepresentation, or that there has been a material change of circumstance, or that there are certain overriding grounds such as the existence of a criminal record.
ii) Those who apply for leave to enter upon entry.
The grounds upon which entry clearance or leave to enter can be sought and obtained under the Rules are relatively numerous and are set out in Parts 2–8 of the Rules. They include short visits, whether for business, work, the obtaining of private medical treatment or a holiday (e.g. Rule 40–56, 95–127), and provide for proposed students or post-graduate doctors or dentists or student nurses (Rules 60–75, 82–87F) or their spouses or children (Rules 76–81), for au pairs (Rules 88–94), those with valid work permits (Rules 128–135) and Ministers of religion (Rules 169–177).
The Rules apply stringent conditions to each category of applicant. For example, Rule 41 sets out the requirements to be met by those seeking leave to enter the United Kingdom as a visitor, namely that he or she:
"(i) is genuinely seeking entry as a visitor for a limited period as stated … not exceeding 6 months; and
(ii) intends to leave the United Kingdom at the end of the period of the visit as stated …; and
(iii) does not intend to take employment in the United Kingdom;
(iv) does not intend to produce goods or provide services within the United Kingdom; and
(v) does not intend to study at a maintained school; and
(vi) will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends; and
(vii) can meet the cost of the return or outward journey."
By Rule 320:
"In addition to the grounds for refusal of entry clearance or leave to enter set out in Parts 2–8 of the Rules, and subject to Paragraph 321 [to which I have referred in paragraph 2(i) above], the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(1) The fact that entry is being sought for a purpose not covered by these Rules …
(3) A failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality …
(5) Failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought.
Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
(8) Failure by a person arriving in the United Kingdom to furnish the Immigration Officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given …
(19) Where from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good …"
There are in addition those who seek, whether before entry or after entry on one of the above bases, asylum. Such claim, if to be made before entry, is made at the point of entry and the material Rules are in particular as follows:
"327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol Relating to the Status of Refugees [the Geneva Convention] for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.
328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the [Geneva Convention]. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.
329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate … no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom.
330. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the [Geneva Convention]; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the [Geneva Convention], to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion, or membership of a particular social group.
336. An application which does not meet the criteria set out in paragraph 334 will be refused."
The provisions of Schedule 1 to the 1971 Act then apply and in particular:
"16(1) A person who may be required to submit to examination … may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
21(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him."
As appears from Rule 327, the Geneva Convention, which entered into force in April 1954, is what imposes, upon the United Kingdom and the other signatories, its obligations to consider and, where appropriate, offer asylum to refugees as defined by that Convention. Such definition is found in Article 1:
"(A) For the purposes of the present Convention, the term 'refugee' shall apply to any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence …, is unable, or owing to such fear, is unwilling, to return to it [subject to the exceptions specified in subsection C]."
There are a number of obligations on contracting states, but the material ones for this purpose are in Articles 32 and 33:
"Article 32 Expulsion
(1) The contracting states shall not expel a refugee lawfully in their territory save on grounds of national security or public order …
Article 33 Prohibition of expulsion or return ('refoulement')
(1) No contracting state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'"
As I have stated, those who claim asylum at the point of entry are immediately referred for investigation upon the basis of temporary admission. They cannot be simply turned away without investigation of their claim. Others have obtained leave to enter or entry clearance, upon the basis e.g. of entry as a short term visitor or as a student, and subsequently claim asylum once they are here: clearly some or many of those will have always intended to claim...
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