R v Secretary of State for the Home Department, ex parte Swati
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE PARKER |
| Judgment Date | 10 February 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0210-3 |
| Docket Number | 86/0124 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 1986 |
[1986] EWCA Civ J0210-3
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Stephen Brown
and
Lord Justice Parker
86/0124
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)
Royal Courts of Justice.
MR. LOUIS BLOM-COOPER, Q.C. and MR. K.A. QUDDUS (instructed by Messrs. A.T.M. Abdullah & Co.) appeared on behalf of the Appellant.
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
On the 14th October, 1985 Mr. Taj Mohd Swati arrived at Heathrow Airport from Pakistan. He sought leave to enter and remain in this country for one week in order "to spend some time visiting places of interest in the U.K. which had been my long term ambition." The venture has not been a success, because he was refused permission to enter and the only places of interest which he has been able to visit were the airport and the Ashford Remand Centre. He could, of course, have left the country, but he has preferred to remain here in an attempt, which has been unsuccessful, to obtain judicial review of the decision to refuse him entry and for bail meanwhile.
The application for leave to apply for judicial review, and a similar application by a Mr. Narsir Butt, came before the single judge on the 31st October, 1985. As both applications were typical of a large number which have recently been received from aspiring visitors—the learned judge had himself been concerned with no less than nine such applications on a single day in the same week—they were adjourned to the full Divisional Court for consideration of two general questions. These were:
"1. Whether, having regard to the alternative remedy provided by the Immigration Act 1971 of a right of appeal to an adjudicator, and then with leave to a tribunal, which the visitor who is refused leave to enter has when he has left this country, the court should grant leave to apply for judicial review and, if so, the evidence and nature of the case which shall be put before the court before it grants leave.
2. Whether this court on an application for judicial review has jurisdiction to grant bail where the applicant is being detained pending the decision of the court on his application for judicial review, and, if it has jurisdiction, whether in the case of applicants who are being detained pursuant to the provisions of the Immigration Act 1971 any special principles apply in relation to the exercise of the court's discretion as to the grant of bail."
The system of immigration control
All countries have some system of immigration control. In the case of the United Kingdom the detailed provisions are to be found in the Immigration Act 1971 and in documents called House of Commons Statements, which are laid before Parliament pursuant to section 3(2) of that Act. There are also some statutory instruments bearing on the subject, two of which are relevant for present purposes.
Those who seek to enter this country fall into a number of different categories and sub-categories to which different rules apply. Mr. Swati came into the category of a "passenger coming for temporary purposes", as contrasted with "passengers coming for employment or business, as persons of independent means, or for marriage" and "passengers coming for settlement". There are also other categories. Within this category he came within the sub-category of "visitor" as contrasted with "students" and "au pair".
Some countries require visitors to obtain visas or equivalent authorisations before arrival, either generally or if they are of specified nationalities. In the case of the United Kingdom, visitors from Pakistan have a choice. They can either apply to the United Kingdom representatives in Pakistan for an "entry clearance certificate", i.e. a visa, or come to this country and rely upon being able to satisfy the immigration officer at the port of entry that they qualify for admission.
There are at least three advantages in obtaining entry clearance instead of simply arriving and requesting leave to enter. The first is that any problems as to eligibility to enter can be explored and resolved without incurring the expense of a possibly fruitless journey to the United Kingdom. The second is that the holder of such a certificate can only be refused admission on the comparatively limited grounds set out in paragraph 13 of House of Commons Paper 169 of 1983 ("H.C.169") The third is that if the holder is refused admission by the immigration officer at the port of entry, he can appeal to an adjudicator and, in some circumstances, appeal further to an immigration tribunal without first leaving the country. In the absence of such a certificate, the aspiring visitor can only appeal after he has left the country (section 13(3) of the 1971 Act). We have not been told why Mr. Swati did not apply for entry clearance in Pakistan, but it is common knowledge that there are very considerable delays involved and this may well have been the reason.
Arriving as he did without an entry clearance certificate, Mr. swati had to satisfy the immigration officer of his eligibility to enter the United Kingdom temporarily as a visitor. The relevant conditions of eligibility are to be found in paragraphs 15 and 17–20 of H.C. 169, as amended by House of Commons Paper 503 of 1985, although the amendments are immaterial for present purposes. Paragraph 15, which is not limited to visitors, required Mr. Swati to satisfy the immigration officer that he would be admitted to another country after his stay in the United Kingdom. Paragraphs 17–20 apply only to visitors and of these it is only necessary to refer to paragraph 17 which is in the following terms:
"17. A passenger seeking entry as a visitor, including one coming to stay with relatives or friends, is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him and that for that period he will maintain and accommodate himself and any dependants, or will, with any dependants, be maintained and accommodated adequately by relatives or friends, without working or recourse to public funds, and can meet the cost of the return or onward journey. But in all cases leave to enter is to be refused if the immigration officer is not so satisfied, and in particular, leave to enter is to be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted."
For the sake of completeness, it should be mentioned that there are other general provisions which can justify a refusal of leave to enter, although none is relied upon in the present case. They are contained in paragraphs 76–85 of H.C. 169 and relate to such matters as passengers with a criminal record, those who are currently subject to a deportation order and those whose exclusion is conducive to the public good.
The arrival of Mr. Swati
Mr. Swati arrived at London Heathrow by air from Pakistan on the 14th October, 1985. In the usual way he was examined by an immigration officer with a view to finding out why he wished to enter the country, how long he wished to stay and whether he was eligible under the rules. This is in accordance with paragraph 2 of the Second Schedule to the 1971 Act. A week earlier Mr. Swati had written to a friend of his, a Mr. Naz, telling him of the proposed visit and Mr. Naz was at the airport to greet him. The immigration officer also interviewed Mr. Naz.
Mr. Swati tells us, and no doubt told the immigration officer, that he is employed in Pakistan as the manager of "Pindi Tailor", who are Pakistan government contractors and general order suppliers, that he had a salary of 3,500 rupees per month, that he was married to a schoolteacher who earned 1,500 rupees a month, that he owned 77 canals of landed property, that he and his wife saved 2–3,000 rupees a month and that this had sufficed to enable him to buy a return ticket to London from Pakistan and to bring with him $400 to spend during his stay.
Mr. Naz, like Mr. Swati, is in the garment trade. He settled in the United Kingdom in 1976 and is employed as a cutter by a London company. He offered to provide Mr. Swati with accommodation at his three bedroomed house in East London for the duration of his visit. Mr. Naz expressed his belief that Mr. Swati would return to Pakistan at the end of the proposed visit. Mr. Swati tells us that, so far as he is aware, there was no inconsistency between his answers to questions by the immigration officer and those of Mr. Naz.
At the conclusion of the interviews, and no doubt after obtaining the authority of a chief immigration officer in accordance with paragraph 78 of H.C. 169, the immigration officer handed Mr. Swati a notice of refusal of leave to enter reading:
"You have asked for leave to enter the United Kingdom as a visitor for one week but I am not satisfied that you are genuinely seeking entry only for this limited period."
The notice informed Mr. Swati that arrangements would be made to remove him from the country on a specified aircraft. The contents of the notice, which also referred to Mr. Swati's right to appeal within 28 days after he had left the country and informed him of the assistance and advice obtainable from the independent United Kingdom Immigrants' Advisory Service, was explained to him in Urdu. Attached to the notice was a form with which to initiate an appeal.
The detention of Mr. Swati
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