R v Secretary of State for the Home Department ex parte Bugdaycay
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BALCOMBE,LORD JUSTICE OLIVER |
| Judgment Date | 05 November 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1105-6 |
| Docket Number | 85/0706 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 1985 |
[1985] EWCA Civ J1105-6
Lord Justice Oliver
Lord Justice Neill
and
Lord Justice Balcombe
85/0706
No. 00317/83
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(MR. JUSTICE WOOLF)
(MR. JUSTICE TAYLOR)
Royal Courts of Justice
MR. J. SULLIVAN QC and MR. ALPAR RIZA (instructed by Messrs. Winstanley-Burgess, Solicitors, London EC1V 2QA) appeared on behalf of the Appellants Norman and Santis
MR. J. SULLIVAN QC and MR. A. NICOL (instructed by Messrs. Winstanley-Burgess, Solicitors, London EC1V 2QA) appeared on behalf of the Appellant Bugdaycay
MR. JOHN LAWS (instructed by The Treasury Solicitor, London SWIH 9JS) appeared on behalf of The Secretary of State for Home Affairs (Respondent)
Before the court are appeals in three separate immigration cases.
By agreement the appeals were heard together because they raised the same questions under the Immigration Act 1971 and under the Immigration Rules which were laid before Parliament on 9th February 1983 in HC 169.
I propose to start by stating as shortly as possible the relevant facts concerning each of the three appellants.
Mr. Bugdaycay
Mr. Huseyin Bugdaycay appeals against the order of Mr. Justice Taylor dated 28th June 1985 whereby he dismissed Mr. Bugdaycay's application for judicial review in respect of the decision of an Immigration Officer dated 23rd May 1984 to treat Mr. Bugdaycay as an illegal entrant and the decision of the Secretary of State dated September 1984 refusing his application for asylum.
Mr. Bugdaycay's application was heard by Mr. Justice Taylor at the same time as the similar application by Mr. Santis.
Mr. Bugdaycay was born and brought up in Turkey. He is aged 30. He arrived in the UK on 2nd August 1983. He told the Immigration Officer on entry that he wished to study English at a language centre in Manchester. As a result he was given leave to enter the UK for the period of three months as a student. Restrictions were imposed as to employment. However, Mr. Bugdaycay remained in the UK after the expiration of the permitted period of three months though without making any application for an extension of his stay. There is no evidence that he ever attended the language centre in Manchester.
On the authority of a Chief Immigration Officer it was decided that Mr. Bugdaycay should be treated as an illegal entrant.
This decision was made on 23rd May 1984, the day of his arrest.
In the course of his interview, however, Mr. Bugdaycay said that he did not wish to return to Turkey as he feared he would be arrested because of his political activities there. An application for asylum was then made on his behalf.
As a result during the summer of 1984 Mr. Bugdaycay was interviewed in connection with his claim for asylum. Certain discrepancies were noted however, in the various stories he told, and eventually in September 1984 it was decided that Mr. Bugdaycay did not have a valid claim for asylum.
Mr. Bugdaycay then sought to have the matter further considered and produced some additional evidence, but the Home Office adhered to their view and the decision not to grant asylum was confirmed in December 1984.
Mr. Santis
Mr. Michael Nelidow Santis appeals the order of Mr. Justice Taylor dated 28th June 1985 whereby he dismissed Mr. Santis' application for judicial review in respect of the decision of the Secretary of State dated 3rd July 1984 refusing him asylum and the decision of an Immigration Officer dated 16th July 1984 that he be treated as an illegal entrant.
Mr. Santis was born and brought up in Chile. He is now aged 24. He arrived in the UK on 25th August 1983. He told the Immigration Officer at Heathrow that he wanted to spend 15 days in the UK on holiday. As a result he was given leave to enter the UK for the period of 15 days.
Eight days later on 2nd September 1983 Mr. Santis called at the Home Office building in Croydon where he made an application for asylum. In the course of the subsequent interview Mr. Santis admitted that he had not told the Immigration Officer at Heathrow the truth because from the outset he had intended to apply for asylum and his story that he wished to spend 15 days in the country on holiday was untrue.
Mr. Santis' application for asylum was investigated and he was interviewed again in January 1984. After consideration the Secretary of State decided on 3rd July 1984 to refuse the application for asylum. On 16th July an Immigration Officer made the decision that Mr. Santis should be treated as an illegal entrant. The question of asylum was further considered after a Member of Parliament had asked that the matter should be reviewed, but on 22nd October 1984 the refusal of asylum was confirmed.
Mr. Norman
Mr. Daniel Tawiah Norman appeals against the order of Mr. Justice Woolf dated 24th January 1984 whereby he dismissed Mr. Norman's application for judicial review in respect of the decision of a Chief Immigration Officer to treat Mr. Norman as an illegal entrant.
It is to be noted that Mr. Norman did not make any formal application in respect of the decision to refuse to grant him asylum, but with the concurrence of Mr. Laws, who appeared on behalf of the Secretary of State, the court allowed counsel for the appellants to put all the arguments he wished to raise in respect of each of the three appellants.
Mr. Norman was born and brought up in Ghana. He is now aged 31. He arrived in the UK on 10th April 1982. There was an issue before the judge as to precisely what information he gave to the Immigration Officer on arrival. It is sufficient to say that he told the Immigration Officer that he had come to look for some machinery for use in connection with his business and that he intended to return to Ghana after a stay of some weeks.
As a result he was given leave to enter the UK for the period of one month. However, he remained in the UK after the expiration of the prescribed period of one month though without making any application for any extension of his stay.
On 4th January 1983 Mr. Norman was arrested when Police Officers went to a house in North London looking for someone else. He was then interviewed.
After questioning he admitted that he had not told the truth to the Immigration Officer at the time of entry in April 1982 but said that he wanted to remain in the UK as a refugee.
On 11th January 1983 Mr. Norman made a formal application for the grant of asylum, submitting his application through the Joint Council for the Welfare of Immigrants.
He was then interviewed in connection with his application foi asylum and in the course of these interviews he gave an account of the reasons which had led him to come to the UK. Mr. Norman's story was considered but on 18th March 1983 his application for asylum was refused. On 4th April 1983 a Chief Immigration Officer made the formal decision that Mr. Norman was to be treated as an illegal entrant.
In support of the appeals on behalf of each of the three appellants Mr. Sullivan QC put forward three main arguments.
These arguments were as follows.
-
(1) That on a proper construction of the Immigration Act 1971 (the 1971 Act) none of the appellants was on the facts an illegal entrant within the meaning of s.31(l).
(2) That even if the appellants were illegal entrants they were also refugees and therefore could not be removed from the UK if in the case of the individual appellant the only country to which he could be sent was a country where he feared persecution.
(3) That in any event by deciding to remove the appellants as illegal entrants rather than to deport them under s.3(5)(a) of the 1971 Act the authorities had misdirected themselves by failing to take relevant matters into consideration.
I shall consider these arguments in turn.
Mr. Sullivan accepted that if one applied the civil standard of proof (see R v. Home Secretary Ex parte Khawaja, (1984) Appeal Cases 74, 124) there was plain evidence that each of the appellants had acted in contravention of s.26(l) of the 1971 Act. The relevant part of s.26(l) is in these terms:
"A person shall be guilty of an offence……………………………………………
(c) if on any (examination under Schedule 2)…. he makes or causes to be made to an Immigration Officer….. a return, statement or representation which he knows to be false or does not believe to be true".
Mr. Sullivan was not prepared to concede that a criminal offence had been committed but he did not dispute that for the purpose of satisfying the civil standard of proof the appellants' own admissions established that there had been contraventions.
He submitted, however, that such contraventions did not have the effect of making the appellants "illegal entrants" within the meaning of s.33(1) of the 1971 Act.
S.33 of the 1971 Act, which is the interpretation section, contains the following relevant definition:
"'Illegal entrant' means a person unlawfully entering or seeking to enter in breach…..of the immigration laws, and includes also a person who has so entered".
According to this definition, submitted Mr. Sullivan, a person does not become an illegal entrant unless the misrepresentation of which he was guilty was a misrepresentation of a...
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