R v Secretary of state for the home department ex parte Maxwell Chikwendu Nwanurue
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1991 |
| Date | 12 June 1991 |
| Court | Queen's Bench Division |
Queen's Bench Division
Auld J
A Riza QC for the applicant
P Havers for the respondent
Cases referred to in the judgment:
Zamir v Secretary of State for the Home DepartmentELR [1980] AC 930: [1980] Imm AR 203.
R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses LtdELRUNK [1982] AC 617: [1981] 2 All ER 93.
R v Secretary of State for the Home Department ex parte Lapinid [1984] Imm AR 101.
R v Secretary of State for the Home Department ex parte KhawajaELR [1984] AC 74: [1982] Imm AR 139.
in re PrestonELRUNK [1985] AC 835: [1985] 2 All ER 327.
R v Secretary of State for the Home Department ex parte RuddockWLRUNK [1987] 1 WLR 1482: [1987] 2 All ER 518.
R v Immigration Appeal Tribunal ex parte Anilkumar PatelELR [1988] AC 910: [1988] Imm AR 434.
Adeniya Adesina v Secretary of State for the Home Department [1988] Imm AR 442.
Adetutu Olonoluyi v Secretary of State for the Home Department [1989] Imm AR 135.
R v Secretary of State for the Home Department ex parte Sylvester Brakwah [1989] Imm AR 366.
Secretary of State for the Home Department v Abu Mowla [1991] Imm AR 210.
Illegal entrant leave to enter sought and granted as visitor immigration officer later concluded applicant always had had intention to study whether conclusion that applicant had secured leave to enter by deception justified whether what the applicant had told the immigration officer showed that on entry he had no more than a mere contemplation of studying. Immigration Act 1971 ss. 3(1)(b), 3(1)(c), 3(3)(a), 26(1)(c), 33(1).
Illegal entrant removal whether the powers of removal contained in the second schedule to the 1971 Act could only be exercised in relation to persons not given leave to enter whether a person who had been given leave to enter and subsequently was held to be an illegal entrant could only be removed from the United Kingdom by way of a deportation order. Immigration Act 1971 ss. 3(5), 5(1), 14(1), sch. 2 paras. 8,9.
Illegal entrant leave to enter secured by deception subsequent application for variation of leave refused before applicant identified as illegal entrant appeal lodged but not heard by date Secretary of State decided to remove applicant from United Kingdom whether applicant had a legitimate expectation that he would be permitted to remain to pursue his appeal. Immigration Act 1971 s. 14(1).
Illegal entrant estoppel whether when applicant had sought variation of leave Secretary of State would in the circumstances have become aware that applicant had entered by deception Secretary of State took no action against applicant at that time whether estopped from subsequently treating applicant as an illegal entrant.
The applicant for judicial review was a citizen of Nigeria. He had sought leave to enter and had been admitted to the United Kingdom as a visitor. He had then applied for variation of leave as a student at the Academic College of Education. His application was refused. He lodged an appeal. Before that appeal was heard by an adjudicator he was arrested for a minor offence. No charge was brought in that regard, but while detained by the police he was interviewed by an immigration officer. On the basis of his replies during that interview, the immigration officer concluded that the applicant had always intended to study in the United Kingdom. He had therefore secured leave to enter as a visitor by deception. He was therefore an illegal entrant: arrangements were put in train to remove him from the United Kingdom under the powers contained in the second schedule to the 1971 Act.
Before the court it was submitted that the applicant was not an illegal entrant. It had not been shown to the requisite high standard, following Khawaja, that the applicant had secured leave to enter by deception. What he had told the immigration officer in the interview after his arrest showed no more than a mere contemplation of studying, when he was granted leave to enter.
Counsel also argued that the Secretary of State had no power to remove the applicant from the United Kingdom under paragraph 9 of the second schedule to the 1971 Act. That power, he asserted had no relevance to a person granted leave to enter and subsequently found to be an illegal entrant: it related only to those who had never been granted leave. The applicant, having been granted leave, could only be removed by way of a deportation order.
It was also argued that the applicant, in the events which had happened, had had a legitimate expectation that he would be permitted to remain in the United Kingdom to have his appeal against a refusal to vary his leave heard and determined.
Counsel also argued that when the Secretary of State had refused the applicant variation of leave, he had known that the educational establishment which the applicant sought to attend did not satisfy the requirements of the rules. At the date of refusal the Secretary of State hador should haveknown that the applicant was, in the circumstances an illegal entrant. He took no action at that time and was estopped from doing so at a later date.
Held:
1. On the facts, the Secretary of State had proved to the requisite high standard in Khawaja, that the applicant had secured leave to enter by deception: it could not be argued that the applicant had shown no more than mere contemplation of studying.
2. It was incorrect to suggest that the judgment in Patel had undermined the reasoning in Khawaja and Lapinid. The consequence of Patel was no more than to confirm that an illegal entrant could be removed either under the powers in paragraph 9 of the second schedule to the 1971 Act, or by way of a deportation order pursuant to s. 3(5)(b) of the Act.
3. There was no evidence to suggest that the Secretary of State knew, or had reason to know that the applicant was an illegal entrant when his application for variation of leave was refused. The Secretary of State was not estopped from treating the applicant subsequently as an illegal entrant.
4. Following Lapinid the applicant as an illegal entrant had no legitimate expectation that he would be permitted to remain in the United Kingdom to pursue his appeal against the refusal to vary his leave to remain in the United Kingdom.
Auld J: This is an application by Maxwell Chikwendu Nwanurue to quash the decision of Helen Barclay Hutcheson, an immigration officer, made on 15 September 1989 declaring him to be an illegal entrant. The effect of that decision, if valid, is to enable the immigration officer to give directions for his removal from the country under paragraph 9 of schedule 2 to the Immigration Act 1971.
It is claimed by the immigration officer that the applicant originally obtained leave to enter the United Kingdom by fraud, that is representing himself as visiting for only a few days, when in truth he came here to study.
The circumstances giving rise to the application are as follows.
The applicant is a citizen of Nigeria and is now aged 30, his date of birth being 3 January 1961. On 22 September 1988 he travelled from Nigeria to the United Kingdom. On arrival at Heathrow Airport he was given limited and conditional leave to enter under sections 3(1)(b) and (c) of the 1971 Act, that is to say, for six months on condition that he did not undertake any employment or engage in any business or profession here.
He had not sought leave to stay for so long. He had obtained a visa in Lagos for a single visit to the United Kingdom. The immigration officer who made out his landing card at Heathrow noted on the reverse of it that the applicant told him that it was his first visit to the United Kingdom, that he wished to enter the country for five days to collect a costume for his sister who was a singer in Nigeria, that the costume had been ordered by his sister and that he was travelling with his sister's boyfriend, who was a frequent visitor to the United Kingdom and who would stay in the country longer than the applicant. He had with him 2,500 in travellers' cheques.
Just under four months later, on 11 January 1989, the applicant applied under section 3(3)(a) of the 1971 Act for the terms of leave to be varied so as to enable him to remain here for four years as a student of accounting at an institution called the Academic College of Education. By letters dated 20 April 1989 the Immigration and Nationality Department of the Home Office asked the applicant and the college for further information. Among the questions asked of the applicant were what was the original purpose of his visit to the United Kingdom and why he had not applied for a student visa to study here. Mr Riza, counsel for the applicant, suggested in his submissions to me that such questions indicated suspicion by the Secretary of State that the applicant was an illegal entrant. I do not read them that way. Faced with an application which, on the face of it, was a change of mind, the Secretary of State would quite naturally wish to examine it in the light of the applicant's intention on entry to the country.
On 11 May 1989 the college wrote to the Immigration and Nationality Department giving details of the course attended by the applicant and indicating a record of regular attendance by him. I have not seen any reply by the applicant to the questions asked of him.
On 26 May 1989 an official of the Immigration and Nationality Department wrote on behalf of the Secretary of State for the Home Department to the applicant refusing to vary the terms of leave to enter under section 3(3)(a) of the 1971 Act, informing him that his leave to remain had been extended to 23 June 1989 under the automatic provisions of the Immigration (Variation of Leave) Order 1976, and notifying him of his right of appeal to an adjudicator under section 14(1) of the 1971 Act. The reasons given on behalf of the Secretary of State for his...
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