Sultan Hamid v Secretary of state for the home department; Ajaib Sultana v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1992 |
| Date | 17 November 1992 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Balcombe, Mann, Leggatt LJJ
M Gill for the applicant
D Pannick QC for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte KhanWLRUNK [1977] 1 WLR 1466: [1977] 3 All ER 538.
Khera [and Khawaja] v Secretary of State for the Home DepartmentELR [1984] AC 74: [1982] Imm AR 139.
Kwong Chan v Secretary of State for the Home DepartmentWLR [1992] 1 WLR 541: [1992] Imm AR 233.
R v Secretary of State for the Home Department ex parte Sultan Hamid [1992] Imm AR 360.
Illegal entrant had secured re-entry to United Kingdom on basis of forged indefinite leave stamp in passport assertion that applicant did not know stamp was a forgery whether evidence sufficient to support conclusion that stamp was a forgery whether, if applicant were ignorant of the forgery he could be held to be an illegal entrant whether a genuine passport with a forged stamp in it was a valid passport for the purposes of schedule 2 to the 1971 Act. Immigration Act 1971 ss. 3(1), 4, 33(1), sch. 2 paras. 4(2)(a), 4(2)(b).
Illegal entrants wife and children of an illegal entrant deception by wife unrelated to deception by spouse whether reasonable to remove wife and children from United Kingdom if spouse not to be removed.
Renewed applications by a husband and wife for leave to move for judicial review of decisions by the Secretary of State to remove them from the United Kingdom as illegal entrants. The deception that grounded the Secretary of State's decision in the case of the wife was unrelated to the deception that led him to consider the husband to be an illegal entrant.
The husband had secured leave to re-enter the United Kingdom on the basis of a stamp in his passport purporting to show he had had indefinite leave when he had last left the country. That stamp was a forgery. On that basis the Secretary of State concluded the applicant was an illegal entrant, having secured leave by deception. Counsel argued that the evidence for the stamp being forged was insubstantial. Even if it were a forgery, the applicant asserted he had not known it was. Counsel, on the basis of observations in Khera argued that Khan and Chan had been wrongly decided: in the events which had happened and if the applicant were ignorant of the forgery, he could not be an illegal entrant. Counsel also argued that a forged stamp in an otherwise genuine passport did not put the passport outside the term valid passport in the second schedule to the 1971 Act.
The wife and children of the applicant had secured entry clearance to the United Kingdom: the wife had stated her husband was in Karachi when he had been in the United Kingdom. It was conceded that she and the minor children were illegal entrants by deception. Counsel argued however that if his submissions in respect of the husband succeeded it would not be reasonable for the wife and children to be removed from the country.
Held
1. The evidence was more than adequate to prove that the stamp in the passport was a forgery.
2. The court was bound by its own decisions in Khan and Chan: even if the applicant had been ignorant of the forgery, he was still an illegal entrant, having secured entry on the basis of that forgery.
3. The argument that the applicant's passport with a forged stamp was still a valid passport for the purposes of schedule 2 to the 1971 Act was unreal.
4. The application by the husband fell thus to be refused and the issue argued in respect of the wife did not arise.
Balcombe LJ: I will ask Mann LJ to give the first judgment.
Mann LJ: On this application the applicant is a citizen of Pakistan. On 19 November 1991 he applied for judicial review of an immigration officer's decision dated 20 August 1991 to the effect that the applicant was an illegal entrant. He was granted leave to move on the papers by Brook J on 18 December 1991. The Secretary of State then applied to set aside the leave and his application was granted by Auld J on 6 April 1992. The decision of the judge is reported at [1992] Imm AR 360. The applicant now renews his application to this court.
The applicant's immigration history can be shortly stated. On 14 July 1986 he was granted leave to enter for one month as a visitor. That leave was subsequently extended to 14 November 1986. An application for a further extension was then made, but this was refused on 23 July 1987, albeit a short one-week extension was granted. The ground of the refusal was that the Secretary of State was not satisfied that the applicant intended to leave at the end of his period of stay.
There was an appeal to an adjudicator, which came on for hearing on 19 October 1988, and the appeal was dismissed. There was no appearance by the applicant. That decision is now of no consequence. What is of consequence is what occurred in September 1987. That is described in paragraphs 3 and 4 of the applicant's affidavit in these proceedings, sworn on 19 November 1991. The paragraphs read:
The reason for me not being aware of the appeal process was that in about September 1987 I met a childhood friend of mine by a coincidence as I was walking along Harlesden High Street. This friend is called Kaser Malik. I have known Mr Malik since I was at school with him and he was living in the United Kingdom and was a builder by trade. After we met Mr Malik took me to his house which was near mine and we discussed various matters. I told him that I was in the United Kingdom as a visitor and that I had been refused leave to remain as a visitor and that I would have to leave the United Kingdom. He told me that if I wanted to he could assist me in obtaining permanent settlement in the United Kingdom from the Home Office. He told me that he knew an immigration officer who is a friend of...
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