England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)

MR. JUSTICE DYSON: This is an application by To-Ming Lam for judicial review of the decision of an immigration officer ma on 25th September 1993 declaring him to be an illegal entrant as defined by section 33(1) of the Immigration Act 1971; that is a person who unlawfully entered in breach of the immigration laws.

It is submitted on behalf of the Secretary of State the (1) the applicant entered into the United Kingdom in reliance on an invalid work permit and has accordingly at all times been an illegal entrant, and (2) the immigration officer was therefore able to give directions for his removal from the United Kingdom under paragraph 9 of Schedule 2 of the Act.

For the applicant, it is argued that (1) it has not bee shown by the Secretary of State to the required standard of proof that the applicant entered on 29th March 1991 in reliance on an invalid work permit, so as to be an illegal entrant, and (2) even if the original entry was illegal, the was no power to give directions for removal, since (a) on the true construction of paragraph 9 of Schedule 2 there was no power because the applicant was granted a subsequent leave to remain and/or (b) the applicant re-entered the United Kingdom on 29th December 1992 as a legal entrant.

The facts

The applicant was born in Hong Kong. He has worked in the Chinese catering industry most of his working life, both in Hong Kong and in Europe. He is 30 years of age. On 19 November 1990 Albert Cheung & Co. Ltd, immigration consultants, applied to the Department of Employment for a work permit to enable the applicant to be employed as head chef at the Dragon Inn Restaurant in Gerrard Street, London. Mr. Cheung's company had been instructed by the owner of the restaurant. His letter of 19th November 1990 was in these terms:

"We apply for a work permit under the above scheme in accordance with our client's instructions.

We enclose the following documents for your attention:-

Forms OW1 & OW1B Letter of authority from our client Copy of our client's advertisement in the newspapers Copy of restaurant menu and wine list.

We trust that the above information is sufficient for your purposes and look forward to hearing from you."

Forms OW1 and OW1B are work permit application forms. Form OW1B sets out the criteria for the issue of a work permit for a chef. At paragraph 8 of his affidavit sworn for the Secretary of State, Mr. Lamb states that the form provides:

"'... the job is such as to require a highly qualified chef who has had 5 years skilled experience, including 2 years in a supervisory capacity in charge of the kitchen brigade; has trained and subsequently acquired experience in all the main departments of the kitchen and/or specialised in one or more.'"

Of the enclosures listed in Mr. Cheung's letter, only copies of the letter of authority and the advertisement appear to have survived. Mr. Cheung says that it is his usual practice to keep records of work permit applications for a period of time after the application, but only records that were strictly necessary were retained by him when he moved office in 1991. The records he has retained include copies of his letter of 19th November 1990 and the two enclosures to which I have referred, as well as replies from the Department of Employment dated 22nd November and 18th December 1990, and Mr. Cheung's further letter of 28th December 1990. One of the puzzling features of this case is that this application is not recorded on the Department's computer, and the Department has no records whatsoever relating to it. It is accepted on behalf of the Secretary of State, however, that Mr. Cheung's application of 19th November 1990 was made and was a genuine application. By its letter of 22nd November the Department acknowledged the application This was a standard pro forma reply. It indicated that a reference number had been given to the case, namely XD1/9100895. The letter was signed by Mark Warner. He worked closely with an officer who was later dismissed by the Department for knowingly and deliberately issuing a large number of work permits invalidly and without authority beyond the powers granted to him by the Department. Mr. Warner left his employment with the Department without notice in November 1991.

On 18th December the Department wrote to Mr. Cheung again as follows:

"Thank you for your application, on behalf of your clients Dragon Inn Chinese Restaurant, for permission to employ the above named overseas national.

Before we proceed further with your application could you please provide the following:

Original references relating to the overseas worker's relevant training and employment experience. The references must be original on the company letter-headed paper of the employing establishment, giving precise dates that the employment commenced and terminated and the precise nature of the post held.

When replying, please quote the reference number above. When we have your response we will consider the case again but, until then, we are unable to take any further action on this matter."

It is accepted by the Secretary of State that this was a genuine letter signed by an officer who is still employed by the Department. It will be noticed that neither of the two letters sent by the Department in response to the application stated that Mr. Cheung had not enclosed Forms OW1 and OW1B. I therefore infer that those two forms had in fact been sent.

On 28th December 1990 Mr. Cheung wrote:

"Please find enclosed the document for the above named which you requested.

Thank you for your kind attention and look forward to hearing from you as soon as possible."

There is no copy of the enclosed document in the papers before the court. It seems likely that the enclosed document was an original reference in respect of the applicant because (1) that was the only document that had been requested by the Department; (2) Mr. Cheung, who is an experienced immigration consultant and whose bona fides has not been challenged by the Secretary of State, states in his affidavit that he recalls being instructed by the restaurant and has no doubt that his firm would have made the application properly and in accordance with the law; (3) Mr. Tin-yau Lau, who worked the Dragon Inn Restaurant between May 1990 and August 1993, states in his affidavit that Mr. Cheung told him that a reference would be needed from the applicant's last employer to support the application for a work permit. Mr. Tin-yau Lau says that he gave Mr. Cheung the name of the applicant. last employer, a Mr. Lee, spoke to Mr. Lee himself, and the Mr. Lee agreed to send a work reference in respect of the applicant.

So far as the applicant is concerned, the next thing that happened was that on 22nd January 1991 a work permit was issued for 48 months to work as a head chef at the Dragon Inn Restaurant. The computer records of the Department of Employment, however, reveal that there had been some strange developments earlier in January with reference to Mr. Lam's application for a work permit. According to those records, on 14th January a second application was made for a work permit. It was dealt with initially by Mr. Warner and the allocated to the official who was later dismissed. On lst January this application was withdrawn. On 18th January a third application was made. Again, it was dealt with by Warner. The computer records refer to no supporting documents for either application. According to those records, on 21st January the third application was allocate to Mr. Warner, and on the same day authorisation for the grant of work permit No. E161764 given by the other official. The record on this file concludes with comments in these terms:

"Ref on file shows that OSW [that is overseas worker] has had the requisite exp at a sufficiently senior level. Ads Vin Hotel ~ Caterer and Sing Tao, November 1990. Both therefore has been undertaken. The status of this restaurant was est. last year. Rec we therefore approve for 48 months. MWW 21/1/91."

The history of this matter thereafter can be stated quite shortly. On 29th March 1991 the applicant was given leave to enter at Gatwick Airport as the holder of a work permit until 29th March 1993. On 13th August 1991 solicitors acting for the application applied for further leave to remain for a further two years on the grounds that he was the holder of a work permit for a four year period. The enclosures sent with the applicant included the work permit. On 27th September 1991 leave to remain was granted until 29th March 1995. On 18th November 1992 the applicant left the United Kingdom for a short period. On 29th December 1992 he was given leave to re-enter until 29th March 1995 under section 3(3)-(b) of the Act. On 25th September 1993 he was interviewed by an immigration officer. After the interview he was served with a notice informing him that he was an illegal entrant. On 25th October 1993 notice was given of application for leave to move for judicial review of that decision. Leave was given on 28th October 1993. It is common ground that the Secretary of State has to prove to a high degree of probability that the applicant was an illegal entrant (see Khawaja v. Secretary of State for the Home Department [l984] AC 74.

Was the work permit invalid?

Mr. Pannick submits that (1) the work permit issued on 21st January 1991 was improperly and invalidly issued, in the sense that the officer who issued it knew that he was not authorised to issue it, and (2) a person who enters the United Kingdom in reliance on a work permit which has been invalidly issued in that sense is an illegal entrant, even if he does not know of its invalidity and even if the invalidity is not the consequence of wrong-doing by the applicant or his agent (see R. v. Immigration Officer. ex parte Chan [l992] 1 WLR 541.

For the applicant, Mr. Scannell does not dispute the second submission. He says, however, that the first submission is not made good because the Secretary of State has not proved the relevant facts to the required standard of proof. It is important to emphasise that Mr. Pannick accepts, rightly in my view, that he has to show that the want of authority to issue the work permit comes from the absence of a bona fide belief on the part of the officer that he was authorised to issue the permit in the circumstances of this case. It is not suggested that the applicant or Mr. Cheung knew or believed that the work permit was invalid. There is no direct evidence that the officer was not authorised to issue the work permit; still less that he was not acting bona fide. Mr. Pannick relies on the following factors and invites me to infer that it is highly probable that the officer was aware that he had no authority to issue the work permit:

(1) The puzzling fact that the application by Mr. Cheung of 19th November 1990 is not recorded on the Department's computer and that the Department has no supporting papers. Mr. Lamb at paragraph 6 of his affidavit concludes that these papers must have been destroyed and the record removed from the computer. He says:

"I can think of no legitimate reason why that should have been done. The normal practice would have been to retain the papers and the computer record."

(2) The puzzling fact that the second application was made and quickly withdrawn, and that there is no explanation for this or for the fact that there are no supporting documents. (3) The puzzling fact that the third application was made and dealt with in three days. A period of two to three months is usual for dealing with such applications. Again, the lack of supporting documents is relied upon. (4) The application was granted by an officer who was later dismissed for improperly issuing work permits. (5) The work permit was issued when the Department had no material relating to the applicant's relevant training and work experience which would have justified the grant of a work permit. Reliance is placed on the fact that, at the interview of 25th September 1993, to which I have already referred, the applicant said that he was not asked to provide any such material. I will deal with these points in turn.

It is undoubtedly odd that the Department's records are silent as to the first application, but it does not seem to me that I can draw an inference of male fides from it. It is suggested by Mr. Lamb, at paragraph 10 of his affidavit, that it appears that the first application was withdrawn, perhaps because no or no adequate reference could be provided. In view of the evidence of Mr. Tin-yau Lau and the evidence of the applicant himself that he had very considerable experience in the Chinese catering industry, it seems to me unlikely that the application was withdrawn for that reason or at all. In any event, even if it was the case that no adequate reference could be provided, it is difficult to see how withdrawing the first application would help; nor can this suggested reason explain the brief appearance of the second application. No explanation has been offered for the second application but, puzzling though it is, it does not seem to me to be evidence pointing to male fides on the part of the unnamed officer and/or Mr. Warner. I do not find it surprising that the third application, if indeed there was a third application, was dealt with in three days. If the Department had received the first application shortly after 19th November 1990 and the outstanding reference shortly after 28th December 1990, the time taken to process the application is not significantly shorter than the usual two to three months period. As regards the reliance placed on the fact that the application was granted by the officer who was later dismissed, in his statement Mr. Lamb says this:

"Each of the work permits has a serial number and that number should relate to a file which would contain the relevant application form and supporting references. It has not been possible to trace such a file for the issue of the work permit number E161764. This accords with the situation which has been found to exist in relation to a large number of work permits issued by the dismissed employee. In a check of cases in which he authorised the issue of work permits between 1st May 1990 and 1st February 1991 files could be located in less than one third of cases. Where files were found the majority contained no application forms or supporting papers and some contained forged references and obviously false information. Some files related to apparently genuine applications. I believe that no file was ever brought into being in relation to this application and that there never was any supporting documentation for the issue of the work permit."

What is important about this is that in the present case, unlike many others involving the dismissed employee, a genuine application was undoubtedly made. The letter dated 18th December 1990 asked only for original references. This implies that the other material sent on 19th November, including the important forms OW1 and OW1B, were considered to be sufficient. I have already given my reasons for concluding that it was likely that a reference was sent under cover of the letter dated 28th December. In these circumstances, this was a case where there was a genuine and apparently complete application. It is accepted by Mr. Lamb that files in cases handled by the dismissed officer did include files containing apparently genuine applications.

As regards Mr. Pannick's last point, for the reasons already mentioned, I do not accept that the Department did have material relating to the applicant's training and experience such as to justify the grant of the work permit.

So far as the interview with the applicant is concerned the evidence relied on by the applicant is that the reference was provided by the former employer to Mr. Cheung who sent on to the Department. I see no conflict between the evidence of Mr. Tin-yau Lau and what the applicant said at the interview. I accept that there are odd features about the Department's records. They give rise to certain suspicious The Secretary of State has not, however, persuaded me that is highly probable that this work permit was issued by an official who knew he had no authority to issue it. There no evidence of bribery. In this case, unlike many others handled by the officer, it is probable that there was a complete and satisfactory application sufficient to justify, the comment of Mr. Warner at the end of the computer record and which I have already quoted. I conclude, therefore, that the work permit was not invalidly or improperly issued and that the applicant did not enter on 29th March 1991 as illegal entrant.

That is sufficient to determine this application in favour of the applicant. In view of the full arguments addressed to me on other issues, however, I shall deal wit}them, although relatively briefly. For this purpose, I n the assumption that the work permit was invalid.

Was there a power to give directions for removal?

If there was power to give directions for removal it derived from paragraph 9 of Schedule 2 of the Act. This provides:

"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)."

Mr. Scannell submits that, even if the applicant was an illegal entrant, there was no such power because the applicant had been given leave to remain by the Home Office on 27th September 1991. Secondly, he submits that, since there is no evidence that when he sought leave to re-enter on 29th December 1992 he was required to produce the work permit, the applicant re-entered the United Kingdom as a legal and not an illegal entrant and, accordingly, one of the conditions for the exercise of the paragraph 9 power did not exist when the power was purportedly exercised on 25th September 1993. As regards the first argument, Mr. Scannell relied on a passage in R. v. Governor of Pentonville. Ex parte Azam [1974] AC 18, 31B-C, where, referring to paragraph 9 of Schedule 2 of the Act, Lord Denning said this:

"The words 'is not given' must, I think, include 'has not been given.' Otherwise it would mean that no one who entered unlawfully before January 1, 1973, could be detained or removed under this procedure. That cannot have been intended. When you remember that an 'illegal entrant' includes one who has entered unlawfully, paragraph 9 must be read as if it said in full: 'when a person who has entered unlawfully is not thereafter given leave to remain.'"

That construction was also adopted and applied by the Court of Appeal in the unreported decision of R. v. Secretary of State for the Home Department. ex parte Razak (25th March 1986). Mr. Scannell referred in particular to a passage from the judgment of Slade LJ in which the learned Lord Justice said of Lord Denning's analysis:

"I respectfully agree. In other words, on the true construction of paragraph 9, an illegal entrant such as the appellant, who has entered the country in breach of the immigration laws, can bring himself outside the ambit of paragraph 9 only if, subsequent to his illegal entry, he has been given leave to enter or remain in the United Kingdom."

Mr. Scannell relied on these authorities to support the proposition that the leave to remain granted on 27th September 1991 and a fortiori the leave to re-enter granted on 29th December 1992, without more render the applicant immune from the exercise of the power conferred by paragraph 9.

Mr. Pannick submits that the extension of the-applicant's leave was the direct consequence of the invalid work permit and that Parliament cannot have intended that a person who is an illegal entrant should be able to improve his position by obtaining a further leave after entry in reliance on the same invalid work permit. It would be a different matter, he said, if the applicant had, after entry, been granted a fresh leave which was not based on the invalid work permit. Mr. Pannick relied on the Court of Appeal decision in R. v. Secretary of State for the Home Department. ex parte Lapinid [1984] 1 WLR 1269, and in particular the passage in the judgment of the court at page 1273E-H, where Browne-Wilkins LJ said this:

"These passages are consistent only with the view that, if it is shown that the leave to enter has been obtained by fraud, there is power under paragraph 9 of Schedule 2 to direct removal of the applicant notwithstanding that in one sense he has 'leave to enter'. In our judgment, the Order of 1976 can make no difference: it does not provide that there shall be a new and different leave to enter but merely extends the period of permitted stay granted by the original leave. Any such extension will be infected with the same vice as the original leave, the period of which has been extended.

Although it is established by Ex parte Khawaja [1984] AC 74 that an illegal entrant who has obtained leave to enter by fraud can be summarily removed under paragraph 9, the words of paragraph 9 itself do not readily fit in with this conclusion once it is established that the original leave to enter is not invalid. The only explanation is that adopted by the judge in this case, viz., that the words of paragraph 9 'Where an illegal entrant is not given leave to enter?..' are to be read as meaning, 'when a person known to be an illegal I entrant is not given leave to enter....' This construction produces the result that leave-to enter given at a time when it is not known that an entrant is illegal is irrelevant for the purposes of paragraph 9."

This passage enables Mr. Pannick to submit that, since the [leave to remain and leave to re-enter were based on the original invalid work permit, those later grants of leave were(infected with the same vice as the original leave. The significance of Ex parte Lapinid is that the Court of Appea] has construed paragraph 9 of Schedule 2 in a way which makes it impossible to argue that the fact that leave has been granted subsequently to an illegal entry, ipso facto takes an entrant outside the scope of the paragraph. In the passage from the judgment of Slade LJ in Ex parte Razak, to which I have already referred, the learned Lord Justice cannot have had in mind subsequent grants of leave to remain or leave to enter which are infected with the same vice as the original leave. Mr. Scannell submitted boldly that Ex parte Lapinid was per incuriam and wrongly decided and that I should follow Ex parte Azam and Ex parte Razak. Ex parte Azam was apparently not cited in Ex parte Lapinid but both Ex parte Azam and Ex parte Lapinid were cited in Ex parte Razak. In Ex parte Razak the Court of Appeal saw no contradiction between Ex parte Lapinid and Ex parte Razak, nor , in my view, is there any. I reject the submission that Ex parte Lapinid was wrongly decided. Accordingly, I reach the conclusion that, the leave to remain granted on 27th September 1991 was infected with the same vice as the original leave, there was power to give directions for the removal of the applicant under paragraph 9, despite the grant of leave to remain. Having regard to the terms of the letter of application for leave to remain dated 13th August 1991 and the fact that the work permit was sent with the letter, I am in no doubt that the leave to remain which was granted was infected with the same vice as the original leave.

Did the applicant re-enter as an illegal entrant on 29th December 1992?

Paragraph 4 of Schedule 2 to the Act, so far as material, provides as follows:

(1) It shall be the duty of any person examined under paragraph 2 or 3 above to furnish to the person carrying out the examination all such information in his possession as that person may require for the purpose of his functions under that paragraph.

(2) A person on his examination under paragraph 2 or 3 above by an immigration officer shall, if so required by the immigration officer -

(a) produce either a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship, and

(b) declare whether or not he is carrying or conveying documents of any relevant description specified by the immigration officer, and produce any documents of that description which he is carrying or conveying." Mr. Scannell says that since, on 29th December 1992, the applicant was not asked to produce the work permit, there was no breach of the duty mentioned in paragraph 4(1) and (2), and therefore the applicant re-entered as a legal entrant. He did not enter unlawfully in breach of the immigration laws (see section 31(1) of the Act). The position was quite different at the time of the original entry when the applicant was required to and did produce the work permit. In answer to this, Mr. Pannick accepts that on 29th December 1992 Mr. Lam was not required to produce his work permit. He points out, however, that Mr. Lam was required to produce trig passport and that the passport contained a page bearing the stamp which evidenced the grant of leave to remain on 27th September 1991.

The leave to remain was obtained in reliance on the work permit. Accordingly, the passport contained a stamp to which Mr. Lam was not entitled because of the invalid work permit. It has been established by the Court of Appeal in Hamid v. Secretary of State for the Home Department [1993] Imm AR 216 that a page in a passport is a document for the purposes of paragraph 4(2)(b) of Schedule 2 and that a stamp on that page is a component part of it (see per Mann LJ at page 223 and Leggatt LJ at page 224). In that case, a page in the applicant's passport contained a forged indefinite leave stamp. The passport was a genuine passport but leave to move for judicial review was nevertheless refused. Mr. Scannell seeks to distinguish that case on the grounds that the stamp in this case was not a forgery. In my view, that can make no difference. Ex parte Chan makes it clear that illegal entry occurs, not only where reliance is placed by an entrant on a forged document, but also where reliance is placed on a document which has not been validly issued.

Mr. Scannell also referred to R. v. Secretary of State for the Home Department ex parte Patel [1986] Imm AR 515. In that case, it was held that the silent presentation of a passport known to contain false information was a deception and an offence under section 26(1)(c) of the Act such as to justify treating the person presenting the passport as an illegal entrant. It was not a case about the true construction of paragraph 4(2) of Schedule 2 at all , and does not impliedly decide that a person who merely presents a passport containing information which is not known to be false cannot, without more, be an illegal entrant. In the result, I conclude that the applicant entered on 29th December 1992 as an illegal entrant.

Conclusion

Accordingly, if I had been of the view that Mr. Lam entered on 29th March 1991 in reliance on an invalid work permit, I would have decided that he has at all material times been an illegal entrant, and this application would have failed. Having regard to my decision as to the work permit, however, the application must succeed. Accordingly, I quash the decision of 25th September 1993.

MISS HUNT (MR.SCANNELL): My Lord, I make an application for the relief pleaded in the Form 86A and an application for costs.

MR. JUSTICE DYSON: Let me see precisely what you were seeking. It is paragraphs 1 and 2. Mr. Pannick, that follows, does it not? MR. PANNICK: My Lord, I do not object to an order of certiorari to quash the decision of the immigration officer. In my submission, there is no need for an order of mandamus. He has his work permit. My Lord has determined that it is valid and good.

MR. JUSTICE DYSON: There is no need for any more. There will be an order for certiorari quashing the decision. That is all you need.

MISS HUNT: And damages.

MR. JUSTICE DYSON: You are asking me to assess damages.

MR. PANNICK: If the applicant wishes to pursue a claim for damages, issues of law relating to that will have to be tried separately. I do not accept the principle and I do not accept that your Lordship can determine that matter today. That can be determined in due course if the parties are unwilling to reach agreement.

MR. JUSTICE DYSON: Do you want to press it before me today?

MISS HUNT: No,my Lord.

MR. JUSTICE DYSON: I say nothing about the issue of damages. If you wish to pursue it, then the matter will have to be taken further. I think directions will have to be given for the disposal of that issue. It may be that the parties can reach agreement about that and not trouble the court. You are entitled to your costs.

MISS HUNT: I am instructed to make another application. Whilst Mr. Lam was on bail, £10,000 was deposited with the solicitors. Is it within the court's powers to release that money from the solicitors?

MR. PANNICK: It was a condition of bail that Mr. Lam had to deposit a sum of money with his solicitors. I have no objection that Mr. Grant should be able now to release that money back to him.