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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Begum, R (on the application of) v Secretary Of State For Home Department [2002] EWCA Civ 629 (29 April, 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/629.html Cite as: [2002] EWCA Civ 629

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Stanley Burnton)

		Royal Courts of Justice Strand London WC2 Monday 29th April, 2002

1. LORD JUSTICE ALDOUS: I will ask Lord Justice Rix to give the first judgment.
2. LORD JUSTICE RIX: This appeal is concerned with an application for permission to apply for judicial review. It is an appeal from the judgment of Stanley Burnton J given on 15th August 2001, when he decided that the ground on which the application was made, namely to seek judicial review of a decision that the appellant, Rabia Begum, was an illegal entrant, was made out of time, without good reason for the delay, and that in any event to extend time would be wholly inimical to good administration.
3. Buxton LJ, in giving permission, limited the points on which this appeal could be argued to the points (1) whether it was open to the judge to dismiss the application on the ground of delay, in light of the fact that the ground in question had been brought into the Form 86A application by amendment, so as to backdate the time of the application to the original date of the Form 86A, which was 22nd September 2000; and also (2) whether it was open to the judge to give, as a further reason for dismissing the claim, that to permit it would be a detriment to good administration and whether, as part of that, it was open to him to reach that conclusion in the light of the alleged history of delay on the part of the Secretary of State.
4. It was only if this court were to decide that this claim should not have been dismissed on the ground of delay that Buxton LJ gave permission for Miss Begum to argue whether on the evidence before the court she would be entitled to apply for judicial review.
5. The history of this application is briefly as follows. Miss Begum was born on 15th December 1975. In 1962 her father settled in the United Kingdom and over 30 years later, in 1993, he applied for visas for his wife and three children, that is to say for Miss Begum and her brother and younger sister. In December 1993 Miss Begum became 18 years old. On 10th January 1994 the family, that is to say the mother and the three children, were interviewed by an Entry Clearance Officer in Bangladesh. While the family were awaiting a decision as a result of those interviews, Miss Begum married Safiq Ali on 8th August 1994. On 11th December 1994 the family were given entry clearance. At that time the mother signed a form in which she was asked whether there had been any change of circumstances. She answered that question "no".
6. The basis upon which the father had applied for visas for his family was that they were his dependants. Following her marriage to Safiq Ali, Miss Begum had gone to live with her husband and had ceased to be the dependant of her father. Those facts are not in dispute as facts. It follows that at the time when the mother signed the certificate that there had been no change of circumstances, there had in fact been a material change in the position of her daughter, Rabia Begum, because, as a result of her marriage, she had ceased to be a dependant of her father. It is said, however, that neither the mother nor Miss Begum realised at the time that there was any significance to this change of circumstance. I will revert to that submission later in my judgment.
7. On 24th January 1995 the family arrived in this country. I do not think that it is disputed on behalf of the Secretary of State that on that occasion only the mother was spoken to by the immigration authorities. The family were given leave to remain in this country in the first instance for 12 months. Miss Begum was allowed entry on the basis that she was a dependant of her father. She was at that time some two or more months' pregnant and her daughter was born on 19th July 1995 in this country.
8. On 24th January 1996 the family were granted indefinite leave to remain. A few months later, on 10th May 1996, Miss Begum's husband, Safiq Ali, applied in Bangladesh for entry clearance. This led in due course to what has been referred in this court to Miss Begum's first interview on 3rd February 1997. That interview was in connection with her husband's application. Notes of that interview, written in manuscript, survive and are before the court. In it Miss Begum accepted the date of her marriage, 8th August 1994; that following her marriage she had gone to live with her husband as his wife in his house; and that that was, in effect, her status when she came to this country. She accepted that her mother knew of her marriage and that her mother had said that her circumstances had not changed. She accepted that she was dependent, at that time of her entry and at the time of her mother's signing of the certificate of no change of circumstances, on her husband and not on her father. She was then asked this question, question 27 in the interview:

"Q. You understand you have gained admission to UK by deception?

A. It was not false. When I applied, I was then unmarried. Only what my mother said was untrue."

9. Question 30 asked this:

"Q. So you are an illegal immigrant because you practiced deception?

A. Yes."

10. Later in the interview she was asked this question, question 58:

"I put it to you that you and your family conspired together so as to get your husband into the UK.

A. I don't know.

Q. But if the ECO [Entry Clearance Officer] had known you were married you would not have got a visa yourself?

A. Yes.

Q. Have you understood everything?

A. Yes.

Q. Any questions?

A. Will he get a visa?"

11. The interviewer said that was not his decision.
12. Miss Begum was invited to attend a second interview on 18th June 1998. Unfortunately no notes of that interview or the tape recording that was made of it survive. However, following the interview a report was made by an immigration officer on 12th September 1998. That says that Miss Begum was interviewed on tape (so it may be that there were no manuscript notes of the interview) and that she was interviewed under caution. The interview was conducted in Bengali, with the assistance of a lady interpreter, and that also present was a representative of Bindman and Partners solicitors. They would have been representing Miss Begum and/or her husband. The note reads in part as follows:

"3. She said that her father submitted the applications, but that she was interviewed by a Visa Officer around 9 or 10 months before the visa was issued. She was asked about her marital status (and agreed at interview on 18.6.98 that this question was relevant to the issue of the visa). At the time she was single, but shortly afterwards, she met the man whom she subsequently married. Immediately afterwards she started living with and was completely maintained by him. Even though she knew this would be relevant to the application, she did not think to volunteer the information to the Visa Officer.

4. Her mother signed a declaration stating that there had been no change in circumstances since the applications were made for any of the family, before the visas were issued."

13. Later in the report there are these paragraphs, under the heading "Conclusion":

"9. The subject applied for a visa to join her father in the UK. She would have signed the declaration at the end of the VAF (Visa Application Form) stating that she was aware that a change in circumstances between the date of the application and arrival in the UK could result in her being refused entry to the UK. She did not bring her marriage or pregnancy (child) to the attention of the Visa Officer, the Immigration Officer on arrival nor the Home Office. If her silence constitutes deception, then the same deception was clearly used to obtain leave to enter and subsequently indefinite leave. It may therefore be possible to treat her as an illegal entrant.

10. This report is submitted for consideration as to whether service of illegal entry papers is appropriate and, if so, whether attempts should be made to remove the subject and her daughter."

14. The matter however seems to have been left in abeyance until a third interview took place on 30th July 1999. There are notes of that interview, but they do not take the matter any further. At the end of that interview she was notified of the decision that she was being treated as an illegal immigrant. It was from that date that she knew of the decision which the Secretary of State for the Home Department had arrived at in her case.
15. On 7th September she was served with notice of removal directions for removal on 14th September. On the same day her father wrote to his Member of Parliament, Miss Oona King MP, who made representations on her behalf. On 13th September her solicitors asked the Home Office for written reasons for her being treated as an illegal entrant. On the next day, 14th September, a letter was sent to her by the Immigration and Nationality Directorate with reference to the solicitors' faxed letter of the previous day. The letter stated that, as its readers would be aware, the normal practice was to remove illegal entrants from the United Kingdom and the Secretary of State had to balance the public interest in maintaining effective and fair immigration controls against the compassionate circumstances in any particular case. The letter went on to state that the Secretary of State had carefully considered the representations submitted on Miss Begum's behalf, including her mother's medical problems as detailed in medical reports which had obviously been sent together with the solicitors' letter. The letter confirmed that removal arrangements would proceed for the evening of that day. It is clear therefore that the solicitors' letter had asked the Secretary of State to reconsider his decision in the light of compassionate circumstances relating to Miss Begum and her mother's ill health.
16. However, Miss Begum was not removed on that day and in due course the Minister, Miss Barbara Roche, sent a lengthy letter dated 24th November 1999 to Miss King MP. The letter began by referring to Miss Begum as an illegal entrant. The letter then set out what it described as the full facts of her case. It referred in passing to the first interview of 3rd February 1997 and then referred to the second interview of 18th June 1998. The letter proceeded then as follows:

"The latter interview was conducted under caution, when Ms Begum admitted that, although she had been single at the time her application for entry clearance was initially made, she shortly afterwards met Mr Ali whom she subsequently married. She admitted that she was living with and completely maintained by Mr Ali prior to her arrival in the United Kingdom, but that she withheld this information from the visa officer in Bangladesh, even though she knew this information would be relevant to her application. Records also show that Ms Begum's mother signed a declaration stating that there had been no change in Ms Begum's circumstances, before the visas were issued. Ms Begum also admitted that she had failed to disclose her marriage, or pregnancy, to the immigration officer on her arrival in the United Kingdom. It was, therefore, concluded that had the Entry Clearance Officer in Bangladesh, or the Immigration authorities in the United Kingdom, been aware of Ms Begum's marriage, she would not have been granted entry to the United Kingdom as her father's dependant. By failing to disclose her marriage she is an illegal entrant contrary to Section 26(1)(c) of the Immigration Act 1971. Accordingly, the indefinite leave granted to Ms Begum on 24 January 1996, is deemed to be invalid."

17. The letter then went on to consider at length the compassionate circumstances which the Minister had been asked to entertain. But the letter made clear that they did not permit exceptional leave being granted to Miss Begum in her case and that arrangements for Miss Begum's removal to Bangladesh would now proceed.
18. However, they did not. A few days before that letter was written her husband had divorced her; that is on 20th November 1999. The Minister's letter of 24th November 1999 had certainly come into the hands of Miss Begum's solicitors by January 2000, for their fax line appears on the top of the copy of the letter in the court bundle.
19. Further representations, however, were made on her behalf. Thus a letter asking the Secretary of State to reconsider the decision in the light of Miss Begum's being divorced by her husband was sent on 9th February 2000. On 10th August 2000 the Secretary of State responded to that letter. The letter of 9th February 2000 is not before the court, but the reply to it stated that the Secretary of State had carefully reviewed Miss Begum's case in the light of these fresh representations. In particular, it was noted that she claimed that she made no deliberate attempt to deceive the immigration authorities, either on or following her arrival in the United Kingdom. Reference was again made to her mother's ill health, and to the fact of her divorce and the difficulties which it was alleged that Miss Begum would be in if she were returned to Bangladesh. However, the letter concluded that the wholly exceptional or compelling reasons to warrant making an exception in Miss Begum's case were lacking.
20. It was only at this point that Miss Begum applied for permission to apply for judicial review, which she did by her Form 86A on, as I have mentioned, 22nd September 2000. In her original Form 86A the decision against which relief was sought was identified as the letter of 10th August 2000, and the ground upon which relief was sought was that the Secretary of State had failed to give adequate consideration to compassionate grounds for permitting her to remain and had also failed to take adequately into consideration the daughter's right to respect for her family life.
21. There was nothing in that application at that time relating to the issue, if it was an issue, of the Secretary of State's decision that she was an illegal entrant; a decision which, as I have mentioned, was notified to her originally on 30th July 1999.
22. The application of 22nd September 2000 was accompanied by an affidavit deposed to by a trainee solicitor which set out the evidence that Miss Begum relied on in her case, and began by acknowledging that Miss Begum and her daughter did not have the right to remain under the Immigration Rules. That was an acceptance at that time of the decision that Miss Begum was an illegal entrant. The affidavit, after setting out the circumstances to ground the applications being made on behalf of the daughter and herself, concluded briefly in paragraph 10 by reiterating that Miss Begum "really did have no intention to deceive over her application to live in this country".
23. Miss Begum's application was adjourned on a number of occasions, but on 25th May 2001 came before Burton J. He adjourned the application once again, but he also gave leave to amend to raise the additional ground that Miss Begum was not an illegal entrant. That was the first appearance in these proceedings of any ground upon that basis. The formal amendment was made on 28th June 2001 in these terms:

"The Applicant is not an Illegal Entrant. In 1993 her father applied for entry clearance for her as a dependant relative. She was interviewed on 10th January 1994 in Bangladesh. She was granted entry clearance on 11th December, 1994. She married on the 8th August 1994. She did not gain entry by fraud or deception. She had no intention to deceive. She was ignorant of the significance of her marriage which has since been dissolved."

24. That aspect of her application was supported by a witness statement from Miss Begum dated 21st June 2001, in which she addressed the essential facts of the case as I have resumed them in this judgment, but also went on to deal with those questions and answers made and given in her first interview which I have highlighted. In effect, as to those questions and answers she said that she was shy and that it was not in her nature to argue with people in authority, and that that was why she had in part answered as she had done. Also that she was answering questions in the light of hindsight and her present understanding of the position, rather than expressing her acceptance of her understanding and her intentions at the time when she entered the United Kingdom. She also said that her mother had had no intention to deceive at the time when she had completed the certificate of no change in circumstances. Neither of them had realised, she said, the significance of the fact of her marriage.
25. This then was the state of the application for permission to apply for judicial review when the matter came before Stanley Burnton J on 15th August 2001. In her submissions today Miss Calder, on behalf of Miss Begum, submits that the judge erred in a number of important respects in concluding that there was no good reason for the delay that had taken place in this case in raising the ground that Miss Begum was not an illegal entrant, and that he ought to have granted an extension of time.
26. In a sense the first point logically is as to the effect of the leave to amend given by Burton J. Miss Calder submits that leave to amend having been given by that judge, the effect of that was to backdate the amendment relating to the issue of illegal entry to 22nd September 2000, the original date of Miss Begum's Form 86A. Miss Calder submits that Stanley Burnton J failed to take into account the need to backdate in this way, and that he had wrongly treated the ground relating to illegal entry as being delayed by some two years, rather than the lesser period which would arise once backdating was taken into account.
27. There is, when one reads the transcript of the proceedings before Burton J, room for some uncertainty as to whether that judge, in giving leave to amend, did or did not intend to leave open for subsequent argument the question of delay in raising the ground relating to illegal entry. It appears that counsel then appearing for the Secretary of State had no instructions in relation to that application to amend, but was willing to allow leave to be given on the basis that the new ground related, as did the existing grounds, to the decision letter of 10th August 2000. In that the Secretary of State's counsel would appear to have been mistaken, as the facts have now emerged, because it is now clear that the decision relating to Miss Begum's status as an illegal entrant goes back to 30th July 1999 or at latest to 14th September 1999 when the letter of that date to which I have referred was faxed.
28. Be that as it may, in my judgment Burton J did give leave to amend, albeit promised on that misunderstanding as to the date of the relevant decision, and the effect of that is that the ground is backdated to 22nd September 2000. Even so, that date, 22nd September 2000, was well out of time in relation to the relevant decision. The rule of court at that time was Order 53, rule 4, which provided as follows:

"(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made."

29. Taking 30th July 1999 as the "date when grounds for the application first arose", the application should have been made at latest by 30th October 1999, and the application of 22nd September 2000 was nearly 11 months later. It was therefore very considerably out of time, even when the advantage of backdating it was taken into account, and of course the position is not in any way improved upon the merits of the case when one realises that the point is in any event only raised by an amendment a further eight months later.
30. Miss Calder submits that the judge failed to take the backdating into account. It is possible that he did. But it is not clear how the matter was argued before him. It appears that it may have been argued on the basis that the question of delay had been left over by Burton J for further argument. That could explain why Stanley Burnton J said:

"5. The decision which is challenged in these proceedings was itself a decision made on 10th August 2000. So that, even having regard to that decision, the amendment was well out of time."

31. Nevertheless, he plainly had in mind that the relevant decision relating to illegal entry, made as long ago as July 1999, as he had pointed out in the previous paragraph, was not within any three-month period of the issue of the Form 86A in September 2000. Be that as it may, it is now clear in this court that, even with backdating to 22nd September 2000, the relevant ground is very seriously out of time. Therefore it is necessary to find a good reason why time should be extended in favour of Miss Begum.
32. Miss Calder's first and most important submission in relation to good reason is that overwhelming merits can provide good reason in themselves and that this was a case in which the overwhelming merits were in Miss Begum's favour. In supporting that submission, Miss Calder relied upon Miss Begum's explanatory remarks in her witness statement in relation to her answers at her first interview. It may be accepted, to keep faith with the view of Stanley Burnton J, that on such a basis an at any rate "arguable claim" could be made for judicial review. In my judgment, however, the argument in question raises at best a weak case. The facts as they stand before this court, and as they stood before Stanley Burnton J, were that Miss Begum had given clear answers at certainly her first interview, the full notes of which are before this court, and also it would seem at her second interview as well, to judge from the report on that interview of September 1998 and the letter of the Minister of November 1999. The answers which Miss Begum gave at those interviews have to be recognised to be extremely damaging to a case that there was neither on her part nor on her mother's part any intention to deceive.
33. It may well be, therefore, that Miss Begum's witness statement in explanation of those answers raises a weakly arguable claim which in other circumstances might have been permitted to go through for argument on an application for judicial review. But in my judgment the material before this court certainly does not permit me to say that the overwhelming merits are in Miss Begum's favour, and can therefore constitute in themselves good reason for extending time by the significant period which it would be necessary to extend time in this case.
34. The third point Miss Calder raises by reference to Stanley Burnton J's judgment is that he did not take into account the Secretary of State's own delay, she submits, from May 1996 to July 1999. In truth, as a matter of analysis, I think that this submission really relates (and under the judgment of Buxton LJ, is only intended to relate) to Stanley Burnton J's separate ground for rejecting the application based upon detriment to good administration. I will nevertheless consider this third ground separately, both in relation to the question of an extension of time in general and also below in relation to the question of detriment to good administration.
35. The period from May 1996 to July 1999 encompasses the whole of the period from Miss Begum's then husband's application for entry clearance to the third of Miss Begum's interviews, when she was ultimately informed of the Secretary of State's decision to treat her as an illegal entrant. Necessarily, however, the husband's application had to be processed and for those purposes Miss Begum interviewed. In the light, moreover, of the answers that she had given at her first interview, it is in no way surprising that the Home Office needed to look into her position in greater detail and to revert to her for a second interview.
36. Whatever may be said about what does appear to have been some considerable passage of time in the dealing with her husband's application, and in concluding, in the light of that application, that Miss Begum had been an illegal entrant back in January 1995, the fact remains that by 30th July 1999, and repeatedly in the light of the IND's letter of 14th September 1999 and the Minister's letter of 24th November 1999, the point regarding Miss Begum's status in the Secretary of State's opinion as an illegal entrant came plainly to the fore. The Secretary of State's conclusion that there had been deception for the purposes of section 26(1)(c) of the Immigration Act 1971, a section expressly referred to in the Minister's letter made it clearly necessary that an application for judicial review now grounded on the submission that she was not in truth an illegal entrant, because there was no deception, should be taken promptly with as little delay as possible, and certainly within the three-month period permitted by the rule.
37. In the light of Miss Begum's interviews, which were reviewed in detail in the Minister's letter of 24th November 1999, it was plain that if there was to be a debate about Miss Begum's or her mother's intention to deceive the immigration authorities, it was going to be an argument addressed primarily by reference to the answers given by Miss Begum at her interviews. At that time those interviews went back only to the years 1997 and 1998, treating the first two interviews as the critical ones. It was not therefore so much the Secretary of State's delay, if any, in treating the question of Miss Begum's husband's application and her own status that was critical; it was Miss Begum's delay in advancing her application in the light of the reasons given on behalf of the Secretary of State. I do not consider that any delay on the part of the Secretary of State during this period means that the Secretary of State, as respondent to this application, is to be treated in the way that Miss Calder's submission treated him, as a litigant who comes to court without clean hands. Nor do I think that it takes anything away from the need for Miss Begum to have advanced her application promptly and with all due speed. If anything, of course, it means that all the greater promptness becomes necessary.
38. Considering therefore all these aspects of the matter, both as they appeared before the judge below and as they appear before me in this court, I would conclude that the judge was entitled to say in his discretion - and in my judgment right to say - that good reason had not been shown for the considerable delay that had taken place in advancing this application on the relevant ground. On the contrary, no reason at all had been given for the delay, other than that in effect the point had not occurred to Miss Begum's legal advisers. It is very doubtful indeed, however, that that explanation, if it is indeed intended to be put forward as an explanation, can be regarded as holding water. It was perfectly plain from the documents coming forward from the Secretary of State that the underlying issue was that Miss Begum was an illegal entrant, and that the reason for that was that false information had been provided or that relevant information had been wrongly withheld from the immigration authorities at critical times. It is true that in this connection Miss Calder has relied upon the decision of Khawaja v Secretary of State for the Home Department [1984] AC 74, in which the House of Lords has held that there is no duty uberrimae fidei of candour on an applicant for entry to this country; and that if the question of illegal entry became an issue, then it is necessary for the Secretary of State to meet a civil but heavy burden of proof to show that leave, once given, had been obtained by deception. However, against the background of the facts in this case as I have described them and the answers given in Miss Begum's interviews, that authority does not advance the argument further.
39. So the judge was, in my judgment, entitled to conclude that no valid explanation had been given for the delay. The position in effect was that it was accepted on Miss Begum's behalf that she was an illegal entrant and reliance was placed in the compassionate grounds advanced to the Secretary of State for exceptional leave to remain. It was only when those compassionate grounds had failed not once but twice that the course was altered to raise as a new ground the argument that Miss Begum had never been an illegal entrant in the first place.
40. Therefore, in the absence of good reason, this appeal in my judgment cannot succeed. There is however the further ground relied on by Stanley Burnton J that in any event no relief should be granted in this case because to do so, in the light of the considerable delay, would have been "wholly inimical to good administration": see paragraph 9 of the judge's judgment. That is a reference to section 31(6) of the Supreme Court Act 1981, which provides, in effect, that even where good reason has been shown to justify an extension of time for the bringing of an application, nevertheless it is in order for a court to refuse relief if it considers that to grant the relief would be detrimental to good administration. The learned judge considered that the raising of the issue of illegal entry so long after the decision relating to illegal entry had been clearly taken, in circumstances where Miss Begum was already being advised by solicitors, would plainly raise a problem for good administration. One only has to imagine the consequences of an issue relating to the good faith of entrance years after a decision by the Secretary of State that entry had been obtained by deceptive means to understand the difficulties in which the administration of the IND and these courts would be placed if permission to apply for judicial review could be obtained in circumstances such as these. Miss Calder submits that there needs to be evidence of detriment to good administration. In my judgment, this court is entitled to infer that the frequency with which late applications relating to an issue of illegal entry would be raised, if it could be raised years after a decision relating to illegal entry was notified to an applicant, would cause serious difficulties to the Secretary of State. In effect, on an issue on which the burden would be on the Secretary of State, the delay would be deeply prejudicial.
41. For these reasons, I consider that the judge was entitled to find that relief in this case would have been wholly inimical to good administration. In truth, however, one does not even reach that stage of the argument in the absence of good reason for extending time. For the reasons which I have sought to give in this judgment, such good reason is absent. It follows therefore that this appeal must be dismissed.
42. LORD JUSTICE ALDOUS: I agree.
ORDER: Appeal dismissed; no order for costs, save detailed assessment of the claimant's Community Legal Services Funding; permission to appeal to the House of Lords refused. (Order not part of approved judgment)