R v Secretary of State for the Home Department, ex parte Jayakody
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DUNN,LORD JUSTICE FOX |
| Judgment Date | 27 November 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1127-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0466 |
| Date | 27 November 1981 |
[1981] EWCA Civ J1127-2
SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
(Appeal from Order of Mr Justice Glidewell)
Royal Courts of Justice,
The Master of the Rolls (Lord Denning),
Lord Justice Dunn
and
Lord Justice Fox
81/0466
In the Matter of the Immigration Act, 1971 and in the Matter of Don Raymond Shirley Jayakody
Mr MICHAEL BELOFF, Q.C. and Mr PAUL ROSE (instructed by Messrs M. Hetty & Co.) appeared on behalf of the Appellant.
Mr SIMON BROWN (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.
Mr Jayakody comes from Sri Lanka. His wife came before him in 1975 and worked here as a nurse. He came later in 1976. Before he came he went to the High Commission in Colombo. He told them that he was a single man. He got an entry clearance. He came here, and was given leave to enter as a visitor for two months. He joined his wife here. Afterwards he applied for extension of his leave. He then told the truth. He said that he was a married man and wanted to stay here with his wife. He admitted that he had told a lie previously. But he did so under a misconception. He thought that otherwise he would be denied entry.
The Home Office looked into the case. They regarded him as an over-stayer. They did not give him an extension. Thereupon, as he was entitled to do—on the basis of being an over-stayer—he appealed to an adjudicator. When the adjudicator heard the case, it took a surprising turn. The adjudicator said the Home Office had got it all wrong. He held that Mr Jayakody was not an over-stayer; that he was an illegal entrant from the beginning; that he had got in by deception; that he had not disclosed the fact that he was a married man; that he had said untruly in Colombo he was a single man. So the adjudicator held that he was an illegal entrant. He allowed the appeal. But that did Mr Jayakody no good. Seeing that he was an illegal entrant, it meant that he could be removed at once. He could not appeal in this country. He would have to go back to Sri Lanka and appeal from there.
On the 14th November, 1980 the immigration officer gave this notice to him: "Having considered all the information available to me, I am satisfied that there are reasonable grounds to conclude that you are an illegal entrant…. I have therefore authorised your temporary admission", and so forth. So there is the position. He was ordered out, or could be removed out, as an illegal entrant.
Thereupon, on his behalf an application was made in the Divisional Court for a judicial review on the ground that the decision of the immigration officer was erroneous; that Mr Jayakody was not an illegal entrant at all, but that at most he was an over-stayer; and that the adjudicator ought to have heard his appeal on the merits.
Mr Justice Glidewell said it was a story like Alice in Wonderland—an over-stayer being turned into an illegal entrant. He did not interfere with the decision of the immigration officer. He dismissed the appeal. Now there is an appeal to us.
I turn now to the facts on which the Home Secretary decided originally that Mr Jayakody was an over-stayer. These are: "The Secretary of State considered the circumstances of entry to this country of the appellant. He noted that the appellant told the immigration officer that he was coming here for a 2 month visit and that he had subsequently applied to remain here until his wife had completed her nursing training. The Secretary of State considered that the appellant may not have disclosed to the immigration officer an intention to remain in the United Kingdom with his wife. Bearing in mind that failure to disclose is not the same as deception and that the appellant might well have been given leave to enter to visit his wife had the true situation been known, the Secretary of State considered that there was insufficient evidence on which to conclude that deception had been employed of a kind that has been regarded by the courts as vitiating a leave to enter given. Accordingly the Secretary of State regarded the leave to enter as valid".
The question is whether that direction by himself to the Secretary of State was correct. It has been said that every person coming here is under a duty of candour and that non-disclosure is to be regarded as deception. In Zamir's case in 1980 Appeal Cases at page 950 Lord Wilberforce said: "In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry...
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