R v Secretary of State for the Home Department, ex parte Ku
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE,LORD JUSTICE MORRITT,THE MASTER OF THE ROLLS |
| Judgment Date | 19 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1219-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. QBCOF/93/1598/D QBCOF/93/1600/D |
| Date | 19 December 1994 |
[1994] EWCA Civ J1219-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CROWN OFFICE LIST
(Mr. Justice Laws)
Before: The Master of The Rolls (Sir Thomas Bingham) Lord Justice Hobhouse and Lord Justice Morritt
No. QBCOF/93/1598/D
QBCOF/93/1599/D
QBCOF/93/1600/D
MR. N. BLAKE Q.C. (instructed by Messrs. E. Edwards, Son & Noice, East Ham) appeared on behalf of the Applicants.
MR. M. SHAW (instructed by The Treasury Solicitor, London) appeared on behalf of the Respondent.
On two days in October 1990, Mr Chung, Mr Ku and Mr Kuet who each held Hong Kong passports entered the United Kingdom. At the point of entry, each of them produced to the immigration officer his passport and a work permit issued by the Overseas Labour Section of the Department of Employment. Each of them was given leave to enter. It is not known whether the immigration officers asked any of them any questions but, if questions were asked, no record has been kept of any answers they gave and no reliance has been placed in the present proceedings upon any such answers.
Their work permits were all in similar terms. Mr Kuet's was dated 18 September 1990 and those for Mr Ku and Mr Chung were dated 19 September 1990. They each covered a period of 24 months from date of entry into the United Kingdom. They named the holder and gave as the employer's name Go Sing Chinese Restaurant of 20–24 Station Road, West Drayton, Middlesex. On each the occupation was said to be "Chef" and the salary or remuneration to be £200 per week. The permits were in the proper form and were properly numbered E151975, E152057 and E152058. They were printed on the Department's form ' OW2' which incorporated security printing. They were authenticated with the stamp of the Department. They had been issued by the Department and were not forged.
Having been given leave to enter, the three entrants went to work for Mr Ng at the Go Sing Restaurant. On the 12th February 1992, during the currency of the period covered by the permits, immigration officers and police attended the Go Sing restaurant. The three were interviewed and each was served with a notice which stated:
"I have considered all of the information available to me and I am satisfied that you are an illegal entrant as defined in section 33(1) of the Immigration Act 1971. You are therefore a person who is liable to be detained pending the completion of arrangements for dealing with you under the Act. I propose to give directions for your removal from the United Kingdom in due course and details will be given to you separately."
At the same time, each was given temporary admission as a person who was liable to be detained.
On 9th March 1992, each applied for the Judicial Review of the decision to treat him as an illegal entrant. Having obtained leave, their application came before Mr Justice Laws on 21st October 1993. He considered that their cases were indistinguishable from the case of Ex p. Chan [1992] 1 WLR 541. He therefore refused their applications. The Applicants have appealed to this Court. It is central to the decision of these appeals to consider whether the decision of the Court of Appeal in Ex p. Chan, by which we like Laws J are bound, is to be distinguished. In Ex p. Chan the Court held that the applicant was an illegal entrant. The factual basis of that decision will be considered later in this Judgment.
Between May 1990 and February 1991 the Department of Employment employed in its Overseas Labour Section an official, since dismissed but who has never been named, who in breach of the internal procedures of the Department is said to have issued, or caused to be issued, a considerable number of work permits which the Department says he should never have issued. He either did not keep proper records of the relevant applications or he destroyed those records before he left the Department. It appears that he ignored the departmental requirement that at least two officers should be involved in each case and that the processing and approval stages should be carried out by different people. His activities were summarised in these words adopted by Laws J:
"[He] is regarded as having knowingly and deliberately issued a large number of work permits improperly and in an unauthorised manner, and beyond the powers granted to him by the Department."
It is also said on behalf of the Minister that, had there been a proper examination of the applications in respect of these three men, the applications would have been refused as not meeting the skills and experience criteria which the Department requires for chefs. Also, it was contrary to Departmental practice to issue more than one permit for a chef in respect of the same establishment (unless exceptionally large) and certainly not to issue as many as three for an establishment such as the Go Sing Restaurant, West Drayton. It is therefore a reasonable conclusion that these permits were among those which the unnamed official had knowingly issued improperly and without adequate authority.
There was evidence in the present case (which, as I will point out later, was absent from the case of Ex p. Chan) that applications were made to the Department for the issue of these permits and it was accepted that for the purposes of this case that those applications had been made in good faith. The procedure that is followed is that an application for a permit for a chef is made by the intending employer filling in a document " OW1B" and forwarding it to the Department together with the appropriate supporting documentation. It is the evidence of Mr Ng, not contradicted by any other evidence, that he had wished to recruit additional staff; that he had advertised unsuccessfully in England but had then had the names of the three men concerned recommended to him by people he knew in Hong Kong. He obtained references from their previous employers and then, with the assistance of a friend, completed the requisite forms and posted them to the Department. In due course he received the work permits by post from the Department and forwarded them to the three men in Hong Kong. No money passed hands at any stage of the operation. It was the evidence of Mr Ng that the applications were made wholly in good faith. It is not suggested by the Minister that the permits were obtained by any misrepresentation. There is no evidence before us as to what motivated the official in the Department nor is there evidence that he was corrupt.
On these facts it is necessary to consider whether the three men were illegal entrants. The case of the Minister that they were depends solely upon the improper conduct of the official in the Department of Employment. The definition of illegal entrant is in section 33(1) of the Act.
"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."
The expression "immigration laws" is also defined as meaning the 1971 Act and any law for purposes similar to those of the Act for the time being in force. It is therefore necessary in order to sustain an allegation that a person is an illegal entrant to show that he has entered in breach of some statutory provision. To enter clandestinely without leave to enter is of course such a case. Section 3(1)(a) provides that a person who is not a British citizen "shall not enter the United Kingdom unless given leave to do so in accordance with this Act".
Whether an entrant could be said to be an illegal entrant notwithstanding that he had received leave to enter was considered by the House of Lords in the case of Ex parte Khawaja [1984] AC 74. Lord Bridge who delivered the leading speech referred to earlier authorities which had held that if the entrant had obtained permission to enter as a result of fraud he would be an illegal entrant. (p.116) He also referred to section 26(1)(c) which provides:
"A person shall be guilty of an offence …. if …. he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of this Act a return statement or representation which he knows to be false or does not believe to be true."
Lord Bridge said (p.118):
"My Lords, in my opinion, the question whether a person who has obtained leave to enter by fraud 'has entered in breach of the Act' is purely one of construction. If the fraud was a contravention of section 26(1)(c) of the Act, the provisions of which I have already quoted, and if that fraud was the effective means of obtaining leave to enter - in other words if, but for the fraud, leave to enter would not have been granted - then the contravention of the Act and the obtaining of leave to enter were the two inseparable elements of the single process of entry and it must inevitably follow that the entry itself was 'in breach of the Act'. It is on this simple ground subject to the limitations that it implies that I would rest my conclusion that those who obtain leave to enter fraudulently have rightly been treated as illegal entrants. I would add however that if I had reached an opposite conclusion, the issue turning at the very least on an arguable point of construction, I should not have thought it appropriate on this point, to depart from Ex p. Zamir [1980] AC 930.
It remains to consider some of the implications of the principle stated in the foregoing paragraph. First, it is clear that a mere non-disclosure to the immigration officer by the person seeking...
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