R v Secretary of State for the Home Department, ex parte Lapinid
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE-WILKINS |
| Judgment Date | 06 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0706-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 1984 |
| Docket Number | 84/0289 |
[1984] EWCA Civ J0706-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE WOOLF)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Griffiths
and
Lord Justice Browne-Wilkinson
84/0289
MR. A. RIZA (instructed by Messrs. Winstanley-Burgess) appeared on behalf of the (Applicant) Appellant.
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is the judgment of the court. This is an appeal from the dismissal by Mr. Justice Woolf of an application by Mr. Lapinid to quash the decision of H.M. Immigration Office directing his removal from the United Kingdom under paragraph 9 of Schedule 2 to the Immigration Act 1971.
Mrs. Lapinid, who is Filipino by birth, has been in the United Kingdom since 1973. Since 1980 she has been entitled to stay here indefinitely without condition and is settled here. As long ago as 1974 the applicant (who was then engaged to Mrs. Lapinid) applied unsuccessfully to join her in the United Kingdom. After the applicant and Mrs. Lapinid were married in 1976, further unsuccessful attempts were made to enable the applicant to live here. On the 28th February, 1980 (immediately after Mrs. Lapinid's own right to remain here became unconditional) she applied to the Home Office for the applicant to be permitted to join her in the United Kingdom. Unfortunately new immigration rules had recently changed the practice that had hitherto applied and the Home Office informed Mrs. Lapinid that the applicant would need a visa.
The applicant having obtained a visa for the purposes of a visit only, on the 21st June, 1980 he was admitted to this country for six months. He and his wife then travelled outside the United Kingdom and returned to this country on the 2nd January, 1981. The applicant was then again given six months' leave to enter as a visitor. On the 11th January, 1981 he applied to the Home Office for a variation of his leave to enter to enable him to remain permanently in the United Kingdom with his wife. That application to vary has never been formally determined. But his case was investigated by the Home Office who reached the conclusion that the applicant was an illegal entrant. On the 5th August, 1982 the Immigration Officer gave directions for the removal of the applicant under paragraph 9 of Schedule 2 to the 1971 Act. In the meantime the applicant and his wife had had a child who was born on the 20th October, 1981.
The ground on which the Home Office reached the conclusion that the applicant was an illegal entrant was that the leave to enter given him on the 2nd January, 1981 had been obtained by deceit. That conclusion was challenged before the learned judge who, although sympathetic to the quandary in which the applicant and his wife found themselves, held that the leave had been obtained by deceit and that accordingly the applicant was an illegal entrant. Although Mr. Riza (for the applicant) does not admit that there was in fact deception, there is no appeal against that part of the judge's judgment and the case has been argued on the basis that the applicant is an illegal entrant, leave to enter having been obtained by his deceit.
The statutory provisions directly applicable are contained in paragraphs 8, 9 and 10 of Schedule 2 to the 1971 Act. Paragraph 8 provides that where a person arriving in the United Kingdom is refused leave to enter, the immigration officer may give directions to the person responsible for his arrival (e.g. the owners of the ship or aircraft by which he arrived) to remove him. Paragraph 9 then provides:
"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)."
It will be seen that in order to come within paragraph 9 apparently two requirements have to be satisfied, viz,
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(a) that the person is an illegal entrant; and
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(b) he is not given leave to enter or remain.
Until the recent decision of the House of Lords in Reg. v. Secretary of State for the Home Department, ex parte Khawaja (1984) Appeal Cases 74 it had been established that the effect of obtaining leave to enter or remain in the United Kingdom by deceit was to render the leave so obtained void or voidable. On that basis, paragraph 9 presented no problems: the entrant satisfied both requirements of paragraph 9 since he was both an illegal entrant and (any leave he obtained being void or avoided) he could not be a person who had leave to enter or remain.
However, as Mr. Riza in his most able argument has demonstrated, the decision in Khawaja makes that approach no longer possible. Mr. Laws (for the Secretary of State) accepts that the speech of Lord Bridge establishes that, notwithstanding that leave was obtained by deceit, for the purposes of the 1971 Act such leave falls to be treated as leave and cannot be ignored. The applicant is an "illegal entrant" because he has...
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