R v Secretary of State for The Home Department, ex parte Sasitharan
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1998 |
| Date | 03 February 1998 |
| Court | Queen's Bench Division |
Queen's Bench Division
Sullivan J
I Macdonald QC for the applicant
S Kovats for the respondent
Cases referred to in the judgment:
Yau Yak Wah and anr v The Home Office [1982] Imm AR 16.
Hellewell v Chief Constable of DerbyshireWLRUNK [1995] 1 WLR 804: [1995] 4 All ER 473.
R v Secretary of State for Foreign and Commonwealth Affairs ex parte Sathasivam Ramanathan (No 1) (unreported, QBD, 30 March 1995).
R v Chief Constable of North Wales Police ex parte ABWLRUNK [1997] 3 WLR 724: [1997] 4 All ER 691.
Entry clearance refusal conducive grounds suspicions applicant had facilitated illegal entry to United Kingdom the duty of the entry clearance officer the need for fairness the need for the applicant to have the opportunity to respond to adverse evidence. HC 395 para. 321.
Passport passed by entry clearance officer to other interested governments whether entry clearance officer entitled so to do with permission of issuing government passport government property.
The applicant for leave to move for judicial review was a citizen of Sri Lanka. He had been refused entry clearance, with his family, for a visit to the United Kingdom. There were suspicions that he had used the family passports to facilitate illegal entry to the United Kingdom.
A previous refusal of entry clearance had been quashed in earlier judicial review proceedings when Collins J had directed that any future application was to be considered without any reference to earlier decisions and the applicant was to be given an opportunity to respond to adverse evidence.
Counsel argued that the entry clearance officer, in the present application had not approached the matter with an open mind: the evidence to support the suspicions was inadequate. The entry clearance officer had also exceeded his powers in passing the applicant's passport to the agencies of other governments concerned with the issue of visas.
Held:
1. The entry clearance officer had not been prejudiced. The applicant had had an opportunity to respond to the adverse evidence. The entry clearance officer had an administrative, not a judicial function and had been entitled to approach the evidence as she did.
2. The passport had been passed to other governments with the permission of the issuing government: the passport was the property of that government and there was no breach of public law.
Sullivan J: In this application Mr Macdonald seeks leave to challenge various decisions of an entry clearance officer in Singapore refusing to grant the applicants visas to visit the United Kingdom, endorsing the passports of the first two applicants with the words: Subject to paragraph 321 of HC 395; and handing over all their passports to the United States and Australian embassies who cancelled certain of their own countries' visas.
The application for leave was made over a year ago. It has twice been adjourned because of the weight of the background material that has to be considered.
At the heart of the dispute is the entry clearance officer's belief that the first applicant, who is the husband of the second applicant and the father of the third and fourth applicants, is involved in the facilitation of unlawful immigration into the United Kingdom.
The dispute has a long history. The applicant visited the United Kingdom on a number of occasions in 1989 and 1993. His case is that he is a perfectly respectable businessman.
In 1993 he was refused entry clearance on the ground that his admission would not be conducive to the public good under paragraph 86 of HC 251 (see now paragraph 321(iii) of HC 395), because he had been involved in facilitating illegal entry of Sri Lankans into the United Kingdom and other European countries. He challenged that refusal by way of judicial review. His challenge was upheld by Collins J who, in March 1995, quashed the 1993 decision.*
It is important to note that in 1993 the applicant had not been interviewed at all before he was given the refusal notice.
The Secretary of State accepted, before Collins J, that the way in which the applicant had been dealt with by the entry clearance officer in 1993 was unfair. The applicant was not told what the allegations against him were, and he thus had no opportunity of dealing with them.
Collins J said:
It is elementary that where a decision is made which depends upon an applicant's alleged misconduct he must know what he is supposed to have done wrong and must be given the chance to respond.
He went on to add:
However, it does seem to me that it is for the immigration officer or the entry clearance officer to make a positive finding that the relevant conduct, whatever it may be, is established and is such as makes it right to refuse leave. The more serious the conduct in question, the more reliable and probative must be the material relied on to establish it.
He said that the matter should be reconsidered and:
that the reconsideration should be completely fresh and with a clean sheet. It must be made clear to everyone involved, including the entry clearance officer, that everything that has happened before must be put on one side and that any application made by the applicant will be considered solely on the material which is available to the entry clearance officer and on the basis that anything adverse is made known to this applicant and he is given the opportunity of dealing with it.
In 1995...
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