R v Secretary of State for the Home Department, ex parte Rahman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUTCHISON,LORD JUSTICE HOBHOUSE,LORD JUSTICE STAUGHTON |
| Judgment Date | 11 December 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1211-19 |
| Docket Number | QBCOF 96/1137/D |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 1996 |
[1996] EWCA Civ J1211-19
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
Royal Courts of Justice
Strand
London WC2
Lord Justice Staughton
Lord Justice Hobhouse
Lord Justice Hutchison
QBCOF 96/1137/D
MR M SHRIMPTON (Instructed by Saf Awan Solicitors W1 2DW) appeared on behalf of the Appellant
MR M SHAW (Instructed by The Treasury Solicitor SW1H 9JS) appeared on behalf of the Respondent
Wednesday, 11th December, 1996
This is an appeal from the judgment of Collins J. given on 26th June refusing leave for the issue of a writ of habeas corpus. The applicant had sought to challenge the legality of his detention, as an illegal entrant, pursuant to paragraph 16 of Schedule 2 of the Immigration Act 1971. The two issues before the judge were:
(1) Whether certain evidence relied on by the Secretary of State was admissible.
(2) Whether, even if that evidence was admissible, the totality of the evidence before the court was sufficient to satisfy the onus of proof of deception to the required standard in accordance with the test laid down by the House of Lords in ex parte Khawaja [1984] AC 74.
The judge held in favour of the Secretary of State on both issues and Mr. Shrimpton for the appellant contends that he was wrong to do so.
I shall try to summarize the facts as briefly as possible.
The appellant claims to be the son of Abdus Somed and his wife Momjan Bibi and to have been born into their family in Bangladesh on 29th July 1967. Abdus Somad, by virtue of his registration in 1960 as a citizen of the United Kingdom and Colonies, enjoyed British citizenship and, in 1989, was living in the U.K. On 29th May 1989 the appellant, who had expressed the wish to join his alleged parents, was interviewed by an Entry Clearance Officer at the British High Commission in Dhaka and was granted a Certificate of Entitlement to the right of abode in the U.K., where he accordingly arrived in 1989. He applied for and on 20th November 1990 obtained a British passport.
In January 1991 the appellant returned to Bangladesh. On 7th April 1991 his wife, Rina Akhter (whom he had married on 18th February 1988) and a boy named Rone Ahmed whom she represented to be the child of herself and the appellant, applied for a Certificate of Entitlement to join the appellant in the U.K. On 4th November Rina Akhter gave birth to a boy, Jone Ahmed, and he was added to the application.
The appellant returned to the U.K. on 22nd July 1991, no doubt anticipating that he would soon be followed by Rina and the two boys. However, while her application was still pending the Secretary of State, in October 1991, received a denunciatory letter claiming that the boy Rone was not the appellant's and Rina's son but the son of Rina's sister and that the appellant was not whom he claimed to be but a man named Mohammed Surab Ali Talukder. A second denunciatory letter was received in April 1992. It, too, asserted that the appellant was not the son of Abdus Somed.
Not surprisingly, on receipt of the first letter enquiries were instituted and, though it will be necessary to return to the details, the outcome of those enquiries can be said to be as follows:—
(a) The appellant and Rina, having initially maintained their position that Rone was their son, eventually (anticipating the results of DNA tests that had been undertaken) conceded that he was not and that he was indeed their nephew.
(b) The Secretary of State, through Entry Clearance Officers in Bangladesh, instituted enquiries about the appellant in two villages. The first, Holdarpur, was Abdus Somad's village where the appellant claimed to have been born and brought up. The second, (where the enquiry took place after the commencement of these proceedings) was to Nittarchok, the village of a man called Suruz Ali Telukder, said in the letters to be the appellant's true father. The approach adopted was to show villagers photographs of the appellant and see whether and what they knew about him. The questioning was effected through interpreters, on whom the Entry Clearance Officers (who did not speak the dialect of the villagers) were dependant. The result of the enquiries (I am not at present dealing with the question of admissibility) very strongly supported the allegations in the letters, in that virtually everyone interviewed in Holdapur asserted that the man in the photograph was not the son of Abdus Somed, whom they knew; and virtually everyone interviewed in Nittarchok recognized the photograph as that of Suraj Ali son of Surab Ali. Moreover, and of particular importance, there was evidence that Abdus Somed and Rina, both of whom were seen in Holdapur, admitted that the appellant was not Abdus Somed's son. It is common ground that this evidence, if presented in an admissible form and uncontradicted, is such as could justify the conclusion that deception had been established to the requisite high standard. It is also common ground that, unless at least some of the village visits evidence is taken into account, there is not sufficient evidence to support that conclusion.
Before considering the two issues in detail I should complete my account of the history by relating further events leading up to this appeal.
On learning of the results of the Holdarpur visit the Immigration Department arranged for the appellant to be interviewed by an immigration officer on 3rd August 1993 and, on concluding that he was an illegal entrant, that officer served the relevant notice on him authorizing his detention pending his removal from the U.K. On 11th August the appellant applied for leave for judicial review of that decision and for a writ of habeas corpus. On 16th August Clarke J., refusing bail, gave certain directions and it appears to have been accepted that the matter should proceed as an application for habeas corpus. Subsequently the appellant was released on bail pending the outcome of his application. For whatever reason, the hearing before Collins J. did not take place until June 1996. By then of course the second village visit had taken place and those advising the appellant had obtained evidence on which he relied to refute that put forward by the Secretary of State.
The First Issue
The question to which the first issue gives rise can be formulated in this way. When a court is obliged to enquire into the truth of a question of fact on which an administrative decision has been based, is it entitled to look at all the material on which the decision-maker legitimately relied (as well of course as looking at any additional material placed before it) or is it confined to considering such evidence as is presented in strictly admissible form?
Collins J. admitted evidence of the village visits and, in particular, of the interviews, which was tendered in a manner familiar in judicial review proceedings—namely by means of affidavits from immigration officers including affidavits from Entry Clearance Officers who were present at the visits. This evidence may be summarized as follows:
1. Mr. Leighton, an officer in the Immigration and Nationality Department with responsibility for cases involving illegal entrants, deposed to the facts and exhibited documents in reliance on Home Office files and information provided by other officials. In the present context it is necessary to focus on his evidence about the first village visit—the second had not taken place when he swore his affidavits. What Mr. Leighton did was to exhibit the report of the Entry Clearance Officer about the visit and, in the body of his affidavit, summarize its effect. The report records that the visit occurred on 15th February 1993 and that two Entry Clearance Officers were present—Mr. Casserly with an interpreter named Navir and Miss Davies with an interpreter named Fozli. It records that Mr. Casserly conducted the "Compound Enquiry" (which included the interviews with Abdus Somed and Rina Akhter) and Miss Davies the "Walkabout Enquiry" in which she interviewed four villagers. Between them, and apart from Abdus Somed and Rina Akhter, they record interviews, in question and answer form, with eleven villagers. The precise terms of those questions and answers are not material in the present context—their general effect has already been stated.
2. There was also an affidavit from Mr. Casserly, who said that he was an Entry Clearance Officer at Dhaka between November 1988 and July 1993; that he and Miss Davies made the visit to Holdarpur; and that the report was the report that he and Miss Davies had complied. It is clear that he had very considerable experience in conducting such visits, which he explained are often the only means of testing a claimed identity or relationship. He described how such visits are made unannounced, with interpreters, and conducted as this one was. He referred to taped records of the interviews, from which he wrote up his report the same evening, after a day in which a number of such visits had been carried out. In this connection we were told by Mr. Shaw—and it is not I think disputed—that the Entry Clearance Officer on such occasions uses his tape recorder not to record what the villager or the interpreter say, but by dictating into it, as an aide-memoire, what he heard—in other words using it in lieu of a notebook.
3. As to Nittarchok, there was an affidavit from another Immigration Officer, Mr. Clements, who had by then taken over from Mr. Leighton, in which Mr. Clements dealt with this visit in a manner similar to that in which Mr. Leighton had dealt with the other. He...
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