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This is a draft of the judgment to be handed down on ----- at ----- a.m. in Court No ---. It is confidential to Counsel and Solicitors, but the substance may be communicated to clients not more than one hour before the giving of judgment. The official
Case No: CO/3079/98
Neutral Citation Number: [2001] EWHC Admin 632
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 9th August 2001
B e f o r e :
THE HONOURABLE MR JUSTICE NEWMAN
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|
THE
QUEEN
v
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|
Defendant
|
|
-
ex parte
|
|
|
YASER MAHMOOD
|
Claimant
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Clive Sheldon (instructed by the Treasury Solicitor for the
Defendant)
Ramby de Mello (instructed by Fawcett Pattni, Solicitors for the
Claimant)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE NEWMAN:
1. This is an application for judicial review of a decision of the Secretary of
State notifying the claimant that he was an `illegal entrant' and therefore
liable to deportation. Permission was granted as long ago as 2 February 2000
by Latham J, and on l9 June 2000, Gibbs J made an order for cross examination
of the claimant on an application by the Secretary of State. Mindful of what
had been said by Thorpe LJ in Cendiz Doldur v Secretary of State for the
Home Department 1998 [IMM AR 352] and since the Secretary of State
maintained that deceit was to be inferred from what the claimant had failed to
state to immigration officers, it was considered necessary to apply so that the
particulars, upon which the Secretary of State would invite the court to infer
deceit, could be put to the claimant. Some years ago, in the case of ex
parte Khawaja 1984 l AC 74, Lord Bridge of Harwich said at 124,
"Whether to permit cross examination will remain a matter for the court
in its discretion to decide. It may be that the express discretion conferred on
the court to permit cross examination by the new procedure for judicial review
under RSC Order 53 has been too sparingly exercised, when deponents could
readily attend court. But however that may be, the discretion to allow cross
examination should only be exercised when justice so demands. Cases will be
rare when it will be essential, in the interests of justice, to require the
attendance for cross examination of a deponent from overseas. If the alleged
illegal entrant applying for habeus corpus, certiori, or both, files an
affidavit to put in issue the primary facts alleged against him, he will
himself be readily available for cross examination, which should enable the
court in the great majority of cases to decide whether or not he is a witness
of truth. If he is believed he will succeed in his application. If he is
disbelieved, there will be nothing to stop the court relying on affidavit
evidence, provided it is inherently credible and convincing, to prove the fraud
alleged against him, even though it has not been tested by cross
examination."
Having regard to the unusual nature of the order which had been made, and
notwithstanding that it had been made after argument by Gibbs J, I reviewed the
position with counsel. Having done so I decided that it was a case in which I
should permit cross examination.
2. The facts
September 1996 - September 1997
On September 10 1996, the claimant made an application to enter the United
Kingdom for the purpose of undertaking studies. In the form which he filled
out at the High Commission in Islamabad, in answer to the question, `Please
give name and address of school/university at which you will study', the
claimant wrote `Matthew Boulton College of Further and Higher Education,
Sherlock Street, Birmingham'. To the question, `Describe fully the course you
wish to follow' and underneath writing to the following effect, `Please submit
evidence of acceptance for a course of study and evidence of accommodation',
the claimant wrote `BSc Hons Software Engineering' and in answer to the
question, `Who will pay for the course', he wrote `Brother'. The course was
stated to be a four year course. He was interviewed on 25 September 1996. To
the material which I have already recited, the following can be added. He
stated that the reason was, `just to study in the UK as it is recognised
worldwide and has sound values'. In answer to the question `Why can't you
study in Pakistan?' the claimant stated that the Pakistan level was a little
low. He stated that he did not know anyone in the UK and that he would stay at
the University Students' Scheme hostel. He was asked what he would do after
the course had finished and he said, `I will come back and start my own
business in software engineering'.
3. The claimant arrived in the United Kingdom on October 3 1996 and declared
his intention to study at the Matthew Boulton College. He was granted leave to
remain as a student until the end of September 1997. He accepted in evidence
that he knew that in order to be granted a student visitor visa he had to be a
genuine student and have the intention to return to Pakistan at the completion
of his studies. He was met at the airport by a family friend called Tahir
Mahmood. He moved in with him. He had not met him before, but he was a
relative of a family who lived in the same street in Pakistan. In addition, he
stated in evidence that his uncle, or a person he described as his uncle, lived
here, namely Tahir Mahmood's father. In his affidavit (his first affidavit for
the purpose of these proceedings) the claimant stated that he did start the
course at Matthew Boulton College but found the course too difficult and his
English not to be good enough. More than that, the weather was bitterly cold
and he kept falling sick and missing lessons. Further he was frightened he
would fail the exams and waste the fees, so he decided to give up after four
weeks without paying any fees at all. At about the time he stopped attending
Matthew Boulton College, namely in or around November l996, he met his future
wife, Nabila Sabar. She was then aged l4, having been born on 30 December
l98l, and was attending school. He was introduced to her by his cousin. In
his first affidavit and in his oral evidence to the court, he stated that his
intention at that time was, since he was ill, very sick with colds, flu and
fever for many months, to wait until the next academic year, when he would
commence his studies again. In the meantime he took the opportunity, whilst
not at college, to improve his English by reading books and talking in English
to relatives and friends. When asked by Mr Sheldon for the Secretary of State
why he had not returned to Pakistan, he said it was too expensive to go back to
Pakistan.
4. When interviewed under caution on 20 May l998, he was asked `Why didn't you
return to Pakistan', he replied `I met my wife in November l996 and we fell in
love. I was going to study the next year as well'. The officer returned to
this period later in the interview, asking `You first met Nabila in November
l996, is that correct?' Answer, `Yes'. `Did you become engaged?' Answer.
`No, but in December 1996 we decided to marry'. The claimant acknowledged the
inconsistency which arose between what he said to the Immigration Officer and
the thrust of the case which was now being advanced and informed the court that
he had simply been confused and had made mistakes in the interview. The
question of marrying Nabila had not arisen, he said, until some time in
December 1997. I shall need to return to this on another aspect of his
evidence.
The return to Pakistan in September 1997
5. In his first affidavit he stated, `On l5 September 1997 I made a brief visit
back to Pakistan to see my family. I took Nabila with me as she wanted to see
my parents.' In his evidence to the court he said he did not take his wife to
Pakistan to meet his family in September 1997 and that he did not pay for her,
and that she had gone with her family. He suggested that the reason he had
gone was because she was frightened that they would arrange for her to marry
someone else. In his interview under caution he was asked why he went back to
Pakistan in September l997 and he answered, `I took Nabila to Pakistan to meet
my family'. He denied that there was at that time any existing proposal or
suggestion that he and Nabila should be married and that the trip to Pakistan
was in any way connected with introducing the person he wished to marry to his
parents.
The return from Pakistan in September l997
6. To regain entry to the United Kingdom he completed a landing card and as a
result was granted two months leave to enter, as a student, intending to follow
a three year course in electrical engineering at Walsall College of Technology.
The course referred to was a foundation course in electrical engineering, to be
funded by his elder brother, who lived in Saudi Arabia. The claimant knew that
he needed to apply for an extension once he had started his course. He duly
filled out a form applying for an extension, indicating that he would be here
for four years but not to study at Walsall College of Technology. In answer to
the section requiring the full name and address of the place where he would
study, he wrote `Matthew Boulton College of Further and Higher Education,
Birmingham', and the proposed course to be a full-time GCSE course, which had
started on 25 September, namely two days before he had arrived back in the
United Kingdom from Pakistan. Despite the fact that he had indicated on his
landing card that he intended to study at the Walsall College, he informed the
court that at the time he returned he had made no firm arrangements at all
about a course at that college, or indeed at any other college. The limit of
his contact had been by way of some enquiries at Walsall College before he had
visited Pakistan. He said he used to go to Walsall College quite a few times.
He used to go to the reception area there and pick up leaflets and used to read
the handbook and talk to the staff in reception. As it happened, when he had
returned from Pakistan he decided against furthering his intention to study at
Walsall College because he was told by Tahir's brother that it was too
difficult for him. This had not been said to him at any time earlier, for
example before he went to Pakistan. In his first affidavit he said, `I made
enquiries with Walsall College as to the course requirements for the foundation
year. I was not sure I would be able to manage it. I decided to go back to
Matthew Boulton College and get advice from them'. There was no suggestion in
his first affidavit that he had made any enquiries at Walsall College prior to
going to Pakistan. If he had made enquiries at Walsall College before going to
Pakistan there seems no reason why Tahir's brother could not have then informed
him at that time that the course he intended to follow was too difficult for
him.
7. Having regard to the limited permission he had to remain, it was obviously
in his interests to enrol upon a course within the two month period he had been
given to enter. He therefore paid the course fees of £600 on 2 October
1997 and received confirmation from the Matthew Boulton College of his
enrolment on a GCSE course. The GCSE course was in sociology, Urdu, maths and
science, and City and Guilds in English and computer literacy and information
technology.
8. In his interview under caution he was asked about his intention at the time
he returned.
Q: When you returned, how long were you intending to stay in the United
Kingdom?
´ A: I was going to carry on studying for one year.
Q: Were you intending to stay here with your wife after that?
A: Yes.
Q: When did you marry?
A: 31 December 1997.
Q: When did you make the marriage arrangements?
A: We decided to marry in December l996. We made the plans after we returned
from Pakistan.
He was asked about Walsall College:
Q: When you returned from Pakistan did you enrol at Walsall College?
A: No. I enrolled at Matthew Boulton College.
Q: Why not Walsall?
A: I changed my mind and decided to do a proper GCSE course.
Attendance at College after his return in September 1997
9. On 11 November l997 leave to remain as a student was extended until 30
September l998. I have no doubt that his enrolment at Matthew Boulton College
was central to the decision to extend his leave. According to evidence from
Matthew Boulton College the last date upon which he attended any course at that
college was two days after he had been granted leave to remain as a student,
namely l3 November l997. In his first affidavit, the claimant stated that he
ceased to attend Matthew Boulton College because of personal difficulties. He
said the problems were in connection with his future mother-in-law, who took
the view that there had to be an engagement, and that she had said this in
August 1997. On the engagement his uncle had given his future mother-in-law a
gift of £1,500 and that subsequently she asked for more money, but his
uncle refused to give her any more. He explained that his mother-in-law was
only interested in the financial benefits to her of the marriage and when she
realised that he was not able to work because of the terms of his student visa,
she turned against him. She turned to maltreating her daughter and preventing
him from seeing her. He became depressed and could not get up in the morning
and go to college. He was sick and was prescribed antidepressants. In a
second affidavit he corrected the effect of that evidence. He stated that he
and his wife never actually became engaged to be married at all and did not go
through any ceremony of engagement, and there never was an engagement which
took place in August l997. He said that when he returned on 26 September l997
they were not engaged, although they were in a relationship. In his evidence
to the court he confirmed that his mother-in-law had been "hassling" him for
money and that she had received £1,500 from his uncle, but he said that
was a loan and not a gift. From the terms of his evidence he appeared to
confirm that the money had been paid in a period before September l997, because
he says he did not tell his mother when he returned to Pakistan about the
£l,500 which had been given to his future mother-in-law, and that he could
not tell his mother because he was "scared". It perhaps does not matter
precisely what the truth or accuracy of these various accounts happens to be,
but it has to be said that the import of this area of examination is highly
relevant to what his intention was on 26 September when he returned to this
country.
10. It is not in dispute that he gave no information to the Immigration Officer
on his return in September l997 about the details of his proposed course at
Walsall College of Engineering, nor did he give any information about his
relationship with Nabila, nor any information about his intentions in
connection with Nabila or anything about the consequences which his
relationship with Nabila might have on returning to Pakistan. He was asked in
his cautioned interview about these matters:
Q: Did you tell the Immigration Officer that Nabila was with you?
A: He didn't ask me. He just asked about study.
Q: So you didn't tell him that your bride-to-be was travelling with you?
A: He didn't ask and I didn't tell him.
Q: When you returned here in September 1997 was it your intention to remain
in the UK with Nabila after your course had finished?
A: Yes. She doesn't want to go back to Pakistan.
He was then asked:
Q: You have been in this country as a student but have failed to attend the
colleges. Have these applications been merely a means to stay here with
Nabila?
A: I want to study, but I can't because of the problems with her parents.
Q: When did the problems with her parents start?
A: After they found out she was going out with me. It was around December
l996.
Q: Did you attend any tutorial classes in l997?
A: No.
Q: How many classes did you claim to have attended each week in
1997?
A: I attended Urdu maths and the other subjects.
11. In his evidence to the court the claimant maintained that in l997, after
his return from Pakistan, he was going to return to Pakistan. It was his
intention to return after he had finished his studies here and that that was
the reason why he made no mention of any intention to stay. He said it was not
until he had had a conversation with his wife in November or December l997 that
they decided to get married, and it was then that she said she could not live
in Pakistan. He said no conversation took place between him and his wife about
where they were going to live before November or December l997. He said that
they were in a relationship but never talked about getting married. The true
position was that in September l997 he was actually going to study and not get
married, and he was not using the intention to study as a device to gain entry
in order to marry Nabila.
12. In his second affidavit, which to a large extent matches the evidence he
gave orally to the court, he did nevertheless say in paragraph 6 as follows:
"I could have applied to the Home Office for leave to remain in the UK
on the basis of my marriage during the validity of my previous stay in the UK
as a student, without having to leave the UK on l5 September l997. If I wanted
to stay in the UK on the basis of my marriage, I could have married my wife and
applied to the Home Office for leave to remain in the UK during the validity of
my previous leave. This, however, I did not do because my wife and I did not
intend to marry until much later and in the circumstances stated above. It
would have been much more sensible and easier for me to have done the latter,
if I had wanted to stay in the UK on the basis of my marriage. When I returned
to the UK I was returning with the intention of continuing my
studies."
In his evidence to the court the claimant accepted that that could not
possibly be right because his wife, Nabila, did not become l6 and therefore of
an age to marry, until 30 December l997. On 30 December l997, he went through
a civil marriage ceremony and married her on her l6th birthday.
1998
13. In April the claimant submitted an application to be permitted to remain on
the basis of his marriage. The application was rejected in August 1998.
The Hearing
14. It was common ground that the court had to determine whether or not the
claimant was an illegal entrant. The claimant has been treated as an illegal
entrant because when he entered as a student he did not have an intention to
study, alternatively, if he had an intention to study he had an intention to
remain in the United Kingdom when his studies were completed. Further it is
alleged he used his studies as a means of remaining so as to marry Nabila and
remain here. Yet further, it is alleged he failed to disclose his real
intentions when he returned from Pakistan in September 1997 and when he sought
leave to remain on ll November 1997.
15. Section 26(1)(c)lA of the Immigration Act 1971 (the 1971 Act), in its
material part, provides:
"A person shall be guilty of an offence ... if on any such examination or
otherwise he makes or causes to be made to an immigration officer or other
person lawfully acting in the execution of this Act on return, a statement or
representation which he knows to be false or does not believe to be
true."
Section 33 of the 1971 Act defines an illegal entrant as "a person (a)
unlawfully entering or seeking to enter [the United Kingdom] in breach of ....
the immigration laws, or (b) entering or seeking to enter by means which
include deception ...."
16. There will be fraud or deception where an entrant makes a positive false
representation. There can be deception by silence or conduct. Against this it
has to be remembered that there is no positive duty of candour on the part of a
person seeking permission to enter approximating to a duty of the utmost good
faith (see Kwawaja v Secretary of State for the Home Department 1984 AC 74 and Doldur v SSHD. It follows that mere non-disclosure of
material facts is not to be regarded as a breach of the immigration laws.
17. The Secretary of State submits that applying the appropriate standard of
proof, namely a high degree of probability appropriate to what is at stake, the
evidence discloses that:
(1) the claimant was fully aware of the conditions attached to the grant of
leave to enter as a student and of their materiality to any application he
made;
(2) the claimant had no intention of being a full time student when he
returned from Pakistan in 1997, nor when he applied in November 1997 to extend
his leave;
(3) the claimant had no intention of returning to Pakistan after completion of
his studies when he entered the United Kingdom in September 1997, nor when he
applied in November 1997 to extend his leave;
(4) the claimant knowingly and wilfully failed to inform the immigration
officer on 26 September 1997 that the conditions attached to the grant of leave
to enter as a student were or would not be met by him.
18. Mr de Mello submitted that insofar as the Secretary of State had decided
the claimant was an illegal entrant because he believed the claimant had not
attended any classes at Matthew Boulton College, the evidence before the court
proved him wrong. The claimant had attended some classes. As to the facts, Mr
de Mello invited the court to conclude that having regard to the standard of
proof, the Secretary of State had not established that the claimant had no
intention to study and or intended to use study simply as a means to gain entry
so as to marry. He invited the court to accept the evidence of the claimant.
Further, the claimant being under no obligation to disclose facts his silence
was neutral and was insufficient to establish deception. It was open to the
immigration officer to ask him about the details of his plans to study and as
to circumstances surrounding his presence here which might be relevant to his
future conduct.
Conclusion
19. In my judgment allowances must be made when assessing the conduct of a
young man arriving in a foreign country for the first time. The court should
be rigorous to ensure that inferences from conduct make due allowance for the
range of responses which would be expected on the part of someone young, far
from home and in a very different environment. But for the making of due
allowances the conduct of the claimant in September 1996, for example, in
overstating his ability to study, in mis-stating where he intended to stay (a
hostel), in stating he did not know anyone in the United Kingdom when, as I
conclude, he must have known of Tahir Mahmood, all these points taken together
would be capable of giving rise to an inference that he was not being truthful.
As it is I regard them as relevant background to the events which followed.
20. I have no difficulty in understanding that the climate would have been
likely to have affected his health and caused him to be absent from College. I
can see that once he had not attended so as to fall well behind in the course,
his marginal grasp of English would have affected his ability to catch up
again. That said, I regard his conduct over 10 or ll months between November
1996 and September 1997 as being inconsistent with an intention on his part to
study here. Difficulties may have been encountered in enrolling on a new
course but he did not even make any inquiries. I do not accept that such
periods of illness as the winter may have caused could have prevented him from
taking steps to implement his intention to study. His assertion that he
planned throughout these months to start again in the academic year in
September 1997 is flatly contradicted by any steps on his part to seek out and
enrol on a course. I consider his evidence about visits to Walsall College as
wholly unimpressive and unconvincing. He had not even decided upon a course
when he left in September. It has to be said at the very time when the
academic year begins.
21. Further to these considerations his answers to the immigration officer,
under caution, in May 1998, provide telling reasons why he would not have been
intent on studying. He had met Nabila in November 1996 and soon thereafter
decided to marry. I accept it as likely that his future mother-in-law did (a)
wish him to work and (b) had a financial interest in the marriage. Neither of
these factors made present or future studies an attractive course. Having
regard to the terms of the interview I am satisfied the claimant meant 1996
when he talked of his plans to marry and I reject his explanation that he
simply made an error in this regard.
22. His evidence to the officer when interviewed is clear. Prior to returning
to Pakistan there were plans to marry, as I conclude, as soon as Nabila was l6
years old. He had not taken any steps to fulfil the intention, he claims he
held, to study in September. He returned in order to introduce Nabila to his
family. I found his attempts to contradict the account he gave to the officer
in interview as wholly unconvincing. His attempt by his second affidavit to
correct the clear effect of his first affidavit was equally unimpressive.
23. Having regard to his evidence to the court about what he had done in
relation to Walsall College, I regard the particulars on his landing card as
incapable of constituting reasonable grounds for concluding he had an intention
to study. Further, I am satisfied that he had an intention to marry as soon as
he could and remain with Nabila in the United Kingdom. I am satisfied that the
matters set out in paragraph 17(1), (2) and (3) have been established to the
required standard of proof.
24. His conduct between September and November 1997 falls into place. Once he
had obtained his extension he gave up his studies. I reject his evidence to
the effect that, yet again, he was too ill to attend a course of study. I am
satisfied that his conduct in this period confirms that at the material time in
September and October he had no intention of studying as a full time student
and had an intention to marry and remain in the United Kingdom. It follows
that I am satisfied to the required standard of proof that in the course of
gaining entry on 26 September 1997 and in the making of his application for an
extension of his leave to remain he deceived the immigration authority by
knowingly and wilfully failing to inform the immigration officer on 26
September 1997 and the authority when applying for an extension of his leave
that the conditions attached to leave to enter as a student were or would not
be met by him (paragraph 17(4) above).
25. It follows that this application for judicial review of the defendant's
decision is dismissed.
*********************
MR JUSTICE NEWMAN: For the reasons given in the judgment which is to be
handed down, this application for judicial review is dismissed.
MISS ADEDEJI: My Lord, may I have an order for detailed legal aid
assessment of the claimant's costs?
MR JUSTICE NEWMAN: Of course.
MISS RAHMAN: My Lord, I am instructed to apply for an order for my costs
in this matter notwithstanding the legal aid status of the claimant.
MR JUSTICE NEWMAN: Yes, what sort of order do you ask for?
MISS RAHMAN: My Lord, it was not entirely clear from the papers whether
or not the claimant was legally aided at all. It appears from the application
we have just heard, that he was.
MR JUSTICE NEWMAN: I assume there is a Legal Services Commission
Certificate which is in existence which we have, is that right Miss Adedeji?
MISS ADEDEJI: My Lord, I have one here which was issued on 9th June
1998.
MR JUSTICE NEWMAN: Then that is that. That is fine.
MISS ADEDEJI: What is not clear from this is whether the legal aid
certificate actually covers the substantive hearing of the judicial review.
MR JUSTICE NEWMAN: That is the only certificate you have?
MISS ADEDEJI: It is the only certificate I have, my Lord. I have tried
to get instructions from those instructing me but the solicitor who has conduct
of this case is away and is not around at the moment.
MR JUSTICE NEWMAN: I better look at that certificate then. Permission
was granted on 2nd February 2000, it seems to me that this certificate should
have been amended.
MISS ADEDEJI: My Lord, yes. I have been trying to get instructions to
see whether it has been amended, whether there is another one which should have
been lodged with the court. If it has not been amended, my Lord, it would
appear that that would be the fault of the solicitors rather than the
claimant.
MR JUSTICE NEWMAN: I understand that, yes.
MISS ADEDEJI: For that reason, my Lord, I would resist the application
for costs, because clearly this claimant does not have any money at all.
MR JUSTICE NEWMAN: But the application you make presumably, Miss Rahman,
is that it be paid by the claimant but the determination of the liability be
postponed pending another application?
MISS RAHMAN: My Lord, yes. The position is, if the claimant is not
legally aided, the order should be a straightforward one.
MR JUSTICE NEWMAN: It seems to me in the circumstances, and having
regard to the fact that I know that the claimant was employed, because that
emerged in the course of the evidence before me, that he had been employed as a
dispatch packer or something of that for some time, there may be questions
about the extent of the legal aid and so on. It seems to me that it is
appropriate to make a limited form of order which is adequately protected by
the requirement that it cannot be enforced until such time there has been a
further application. Thank you very much.
------------
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