R v Immigration Appeal Tribunal, ex parte Patel (Anilkumar Rabindrabhai)
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Elwyn-Jones,Lord Ackner,Lord Goff of Chieveley,Lord Jauncey |
| Judgment Date | 05 May 1988 |
| Judgment citation (vLex) | [1988] UKHL J0505-3 |
| Court | House of Lords |
| Date | 05 May 1988 |
[1988] UKHL J0505-3
House of Lords
Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Ackner
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
My Lords,
The facts out of which this appeal arises are not in dispute and may be shortly summarised. The respondent was born in Uganda in 1955. He moved with his parents to India in 1960. In 1980 the respondent's father and and mother were admitted for settlement to the United Kingdom under the quota voucher system. In 1981 the respondent was granted an entry clearance certificate for "settlement accompanying parents." In order to obtain that certificate he had falsely represented to the immigration authorities that he was a single man. In fact he married in 1978 and has one child born in 1979. But for the false representation no entry clearance certificate would have been granted to him. He arrived in the United Kingdom in May 1981 and on presenting his entry clearance certificate was granted indefinite leave to enter. There is no doubt that he is an "illegal entrant" as defined in section 33(1) of the Immigration Act 1971 ("the Act").
Being a stateless person the respondent holds an identity certificate instead of a passport. He visited India in December 1981 and returned in January 1982. He was re-admitted without question as a returning resident. In December 1981 his wife applied for entry clearance to enable her to join her husband here. Not surprisingly this lead to inquiries which exposed the fraud by which the respondent had originally obtained leave to enter. He was in due course arrested and detained as an illegal entrant with a view to his removal pursuant to paragraphs 8 and 9 of Schedule 2 to the Act. In September 1983, however, he was released from detention and the intention to remove him under the provisions of Schedule 2 was abandoned, probably, it would seem, because of a mistaken apprehension on the part of Home Office officials as to the effect in relation to the circumstances of the respondent's case, of the decision of this House in Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 74 [1984] A.C. 74. A Member of Parliament, who had taken up the respondent's case, was informed by the Home Office that "his position here is now being considered further with a view to his possible deportation."
In October 1983, intending to visit India again, the respondent obtained from the Passport Office a visa stamped on his identity certificate for re-entry to the United Kingdom valid until 3 August 1984, which would operate as an entry clearance on his return. He left for India in November 1983 and returned on 3 March 1984. On arrival he was refused leave to enter by an immigration officer who issued a notice to him in the following terms:
"You have sought leave to enter on the ground that you had an indefinite leave to remain in the United Kingdom when you left, and that you have not been away for longer than two years but this is not conclusive in your favour. You hold a current visa endorsed for journeys to the United Kingdom but I am satisfied that the leave to enter given on 25 May 1981 and the settlement visa on 6 April 1981 were obtained by deception and in the light of this I consider that your exclusion from the United Kingdom is conducive to the public good."
Appeals by the respondent against this refusal of leave to enter first to an adjudicator then to the Immigration Appeal Tribunal were dismissed. The respondent thereupon applied for judicial review of the decision of the Immigration Appeal Tribunal and was granted an order of certiorari to quash that decision by Taylor J. [1987] Imm. A.R. 164. The judgment of Taylor J. was affirmed by a majority by the Court of Appeal (Stephen Brown and Neill L.JJ, Dillon L.J. dissenting) who granted leave to the Immigration Appeal Tribunal to appeal to your Lordships' House. The respondent was not represented at the hearing before your Lordships, but I would wish to acknowledge gratefully the assistance of Mr. David Pannick, who appeared as amicus curiae and skillfully deployed every argument which could properly be advanced in support of the decision of the majority in the Court of Appeal.
A point was canvassed on behalf of the respondent in the Court of Appeal to the effect, put shortly, that the visa obtained by him from the Passport Office after his release from detention as an illegal entrant by the Home Office created some kind of estoppel against the Crown. The Court of Appeal unanimously rejected this contention for the reasons given in the judgment of Dillon L.J. The contention was not renewed in argument before your Lordships. I have no hesitation in expressing my agreement on this point with the conclusion of the Court of Appeal and with the reasons they gave.
The rules made under section 3(2) of the Act in force at the material time are contained in the "Statement of Changes in Immigration Rules" of February 1983 (H.C. 169). In refusing the respondent leave to enter, the immigration officer relied on rule 85, which provides so far as material:
"Any passenger except the wife and child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where ( b) from information available to the immigration officer it seems right to refuse leave to enter on that ground …"
Effectively this was the only ground available to justify the refusal in the respondent's case. Under rule 13 the respondent, as the holder of an entry clearance in the form of the visa granted in October 1983, could not be refused entry save on certain specified grounds, of which the only ground capable of applying to him was that his exclusion was "conducive to the public good." In these circumstances it has throughout been accepted on behalf of the Immigration Appeal Tribunal that the refusal can only be sustained in law if the deception by which the respondent obtained his original leave to enter would, if he had never left the country, have afforded by itself, a ground on which the Secretary of State could have deemed "his deportation to be conducive to the public good" under section 3(5)( b) of the Act.
Persons not having the right of abode in the United Kingdom but who have originally entered with leave may be removed either by the summary procedure applicable to illegal entrants under Schedule 2 to the Act or by deportation. Section 3(5) of the Act provides:
"A person who is not a British citizen shall be liable to deportation from the United Kingdom - ( a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or ( b) if the Secretary of State deems his deportation to be conducive to the public good; or ( c) if another person to whose family he belongs is or has been ordered to be deported."
In addition, such a person is liable to deportation under section 3(6):
"… if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."
In Ex Parte Khawaja [1984] A.C. 74 one of the points in issue was whether the expression "illegal entrant" in section 33(1) of the Act included any person who had obtained leave to enter by fraud or deception or, as was contended for the appellants in that case, was limited to persons who had entered the country clandestinely by evading immigration control altogether. The point is dealt with at greater length in my speech than in the other speeches in the case and both Lord Scarman and Lord Templeman expressed their agreement with my reasoning and my conclusion. There is a passage in which I examine the argument which had been advanced by Mr. Blom-Cooper Q.C., which, I fear, I must quote at some length. I said, at p. 117:
"If it is desired to expel one who has obtained leave to enter by fraud, this, says Mr....
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